EXHIBIT 10.1
EXECUTION COPY
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$7,295,000,000
AMENDED AND RESTATED CREDIT AGREEMENT
AMONG
GENERAL GROWTH PROPERTIES, INC.,
GGP LIMITED PARTNERSHIP
AND
GGPLP L.L.C.,
AS BORROWERS,
THE SEVERAL LENDERS FROM TIME TO TIME PARTIES HERETO,
XXXXXX BROTHERS INC.,
BANC OF AMERICA SECURITIES LLC,
CREDIT SUISSE FIRST BOSTON
AND
WACHOVIA CAPITAL MARKETS, LLC,
AS ARRANGERS,
BANK OF AMERICA, N.A.
AND
CREDIT SUISSE FIRST BOSTON,
AS SYNDICATION AGENTS,
EUROHYPO AG, NEW YORK BRANCH,
AS DOCUMENTATION AGENT,
XXXXXX COMMERCIAL PAPER INC.,
AS TRANCHE B ADMINISTRATIVE AGENT,
AND
WACHOVIA BANK, NATIONAL ASSOCIATION,
AS GENERAL ADMINISTRATIVE AGENT
DATED AS OF NOVEMBER 12, 2004
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TABLE OF CONTENTS
Page
SECTION 1. DEFINITIONS...................................................................... 1
1.1 Defined Terms.................................................................... 1
1.2 Other Definitional Provisions.................................................... 28
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS.................................................. 28
2.1 Term Loan Commitments............................................................ 28
2.2 Procedure for Term Loan Borrowing................................................ 29
2.3 Repayment of Term Loans; Extension of CMBS Maturity Date......................... 29
2.4 Revolving Credit Commitments..................................................... 31
2.5 Procedure for Revolving Credit Borrowing......................................... 32
2.6 Swing Line Commitment............................................................ 32
2.7 Procedure for Swing Line Borrowing; Refunding of Swing Line Loans................ 32
2.8 Repayment of Loans; Evidence of Debt............................................. 34
2.9 Commitment Fees, etc............................................................. 35
2.10 Termination or Reduction of Revolving Credit Commitments......................... 35
2.11 Optional Prepayments............................................................. 35
2.12 Mandatory Prepayments............................................................ 35
2.13 Conversion and Continuation Options.............................................. 36
2.14 Minimum Amounts and Maximum Number of Eurodollar Tranches........................ 37
2.15 Interest Rates and Payment Dates................................................. 37
2.16 Computation of Interest and Fees................................................. 38
2.17 Inability to Determine Interest Rate............................................. 38
2.18 Pro Rata Treatment and Payments.................................................. 39
2.19 Requirements of Law.............................................................. 42
2.20 Taxes............................................................................ 43
2.21 Indemnity........................................................................ 44
2.22 Illegality....................................................................... 44
2.23 Change of Lending Office......................................................... 45
2.24 Replacement of Lenders under Certain Circumstances............................... 45
SECTION 3. LETTERS OF CREDIT................................................................ 45
3.1 L/C Commitment................................................................... 45
3.2 Procedure for Issuance of Letter of Credit....................................... 46
3.3 Fees and Other Charges........................................................... 46
3.4 L/C Participations............................................................... 46
3.5 Reimbursement Obligation of the Borrowers........................................ 47
3.6 Obligations Absolute............................................................. 48
3.7 Letter of Credit Payments........................................................ 49
3.8 Applications..................................................................... 49
3.9 Letters of Credit Issued for Subsidiaries........................................ 49
3.10 Existing Letters of Credit....................................................... 49
SECTION 4. REPRESENTATIONS AND WARRANTIES................................................... 49
4.1 Financial Condition.............................................................. 49
4.2 No Change........................................................................ 50
4.3 Corporate Existence; Compliance with Law......................................... 50
4.4 Corporate Power; Authorization; Enforceable Obligations.......................... 51
4.5 No Legal Bar..................................................................... 51
4.6 No Material Litigation........................................................... 51
4.7 No Default....................................................................... 51
4.8 Ownership of Property; Liens..................................................... 51
4.9 Intellectual Property............................................................ 52
4.10 Taxes............................................................................ 52
4.11 Federal Regulations.............................................................. 52
4.12 Labor Matters.................................................................... 52
4.13 ERISA............................................................................ 52
4.14 Investment Company Act; Other Regulations........................................ 53
4.15 Subsidiaries..................................................................... 53
4.16 Use of Proceeds.................................................................. 53
4.17 Environmental Matters............................................................ 53
4.18 Accuracy of Information, etc..................................................... 55
4.19 Security Documents............................................................... 55
4.20 Solvency......................................................................... 55
4.21 Certain Documents................................................................ 55
4.22 REIT Status...................................................................... 55
SECTION 5. CONDITIONS PRECEDENT............................................................. 55
5.1 Conditions to Initial Extension of Credit........................................ 55
5.2 Conditions to Each Extension of Credit........................................... 58
SECTION 6. AFFIRMATIVE COVENANTS............................................................ 58
6.1 Financial Statements............................................................. 58
6.2 Certificates; Other Information.................................................. 59
6.3 Conduct of Business and Maintenance of Existence; Compliance..................... 60
6.4 Maintenance of Property; Insurance............................................... 60
6.5 Inspection of Property; Books and Records; Discussions........................... 61
6.6 Notices.......................................................................... 61
6.7 Environmental Laws............................................................... 61
6.8 Interest Rate Protection......................................................... 62
6.9 Further Assurances............................................................... 62
6.10 Subsidiary Distributions......................................................... 62
6.11 Appraisals....................................................................... 62
6.12 Consents......................................................................... 62
6.13 Pledges.......................................................................... 62
SECTION 7. NEGATIVE COVENANTS............................................................... 63
7.1 Financial Condition Covenants.................................................... 63
7.2 Limitation on Indebtedness....................................................... 63
7.3 Limitation on Liens.............................................................. 63
7.4 Limitation on Fundamental Changes................................................ 64
7.5 Limitation on Disposition of Property............................................ 65
7.6 Limitation on Restricted Payments and Redemption Payments........................ 65
7.7 Limitation on Investments........................................................ 66
7.8 Limitation on Transactions with Affiliates....................................... 67
7.9 Limitation on Changes in Fiscal Periods.......................................... 67
7.10 Limitation on Restrictions on Subsidiary Distributions........................... 67
7.11 Limitation on Lines of Business.................................................. 68
7.12 Limitation on Amendments to Merger Documentation................................. 68
7.13 Limitation on Amendments to Other Documents...................................... 68
7.14 Limitation on Activities of Holdings............................................. 68
7.15 Limitation on Hedge Agreements................................................... 68
7.16 New Subsidiaries; Certain Dispositions........................................... 68
SECTION 8. EVENTS OF DEFAULT................................................................ 69
SECTION 9. THE AGENTS....................................................................... 72
9.1 Appointment...................................................................... 72
9.2 Delegation of Duties............................................................. 72
9.3 Exculpatory Provisions........................................................... 72
9.4 Reliance by Agents............................................................... 72
9.5 Notice of Default................................................................ 73
9.6 Non-Reliance on Agents and Other Lenders......................................... 73
9.7 Indemnification.................................................................. 73
9.8 Agent in Its Individual Capacity................................................. 74
9.9 Successor Administrative Agent................................................... 74
9.10 Authorization to Execute Certain Documents and to Release Liens and Guarantees... 74
9.11 The Arrangers; the Syndication Agents; the Documentation Agent................... 74
SECTION 10. MISCELLANEOUS.................................................................... 75
10.1 Amendments and Waivers........................................................... 75
10.2 Notices.......................................................................... 77
10.3 No Waiver; Cumulative Remedies................................................... 79
10.4 Survival of Representations and Warranties....................................... 79
10.5 Payment of Expenses.............................................................. 79
10.6 Successors and Assigns; Participations and Assignments........................... 80
10.7 Adjustments; Set-off............................................................. 83
10.8 Counterparts..................................................................... 84
10.9 Severability..................................................................... 84
10.10 Integration...................................................................... 84
10.11 GOVERNING LAW.................................................................... 84
10.12 Submission To Jurisdiction; Waivers.............................................. 84
10.13 Acknowledgments.................................................................. 85
10.14 Confidentiality.................................................................. 85
10.15 Release of Collateral and Guarantee Obligations.................................. 85
10.16 Accounting Changes............................................................... 86
10.17 Delivery of Lender Addenda....................................................... 86
10.18 WAIVERS OF JURY TRIAL............................................................ 86
ANNEXES:
A Pricing Grid
SCHEDULES:
3.10 Existing Letters of Credit
4.1(b) GGP Dispositions
4.1(c) Target Dispositions
4.4 Consents
4.6 Litigation
4.15 Subsidiaries
4.17 Environmental Disclosure
4.19 UCC Filing Jurisdictions
7.2 Existing Indebtedness
7.8(h) Existing Investments
EXHIBITS:
A Form of Guarantee and Pledge Agreement
B Form of Compliance Certificate
C Form of Closing Certificate
D Form of Assignment and Acceptance
E-1 Form of Legal Opinion of Xxxxxxxx & Xxxxxxxx LLP
E-2 Form of Legal Opinion of Xxxx, Gerber & Xxxxxxxxx LLP
F-1 Form of Term Note
F-2 Form of Revolving Credit Note
F-3 Form of Swing Line Note
G Form of Prepayment Option Notice
H Form of Exemption Certificate
I Form of Lender Addendum
J Form of Borrowing Notice
K Form of Control Agreement
L Form of Acknowledgment Agreement
AMENDED AND RESTATED CREDIT AGREEMENT, dated as of November 12,
2004, among GENERAL GROWTH PROPERTIES, INC., a Delaware corporation
("Holdings"), GGP LIMITED PARTNERSHIP, a Delaware limited partnership (the
"Partnership"), GGPLP L.L.C., a Delaware limited liability company (the
"Company"; Holdings, the Partnership and the Company being referred to herein,
individually or collectively, as the context shall require, as the "Borrower" or
"Borrowers"), the several banks and other financial institutions or entities
from time to time parties to this Agreement (the "Lenders"), XXXXXX BROTHERS
INC., BANC OF AMERICA SECURITIES LLC, CREDIT SUISSE FIRST BOSTON and WACHOVIA
CAPITAL MARKETS, LLC, as joint advisors, joint arrangers and joint bookrunners
(in such capacities, the "Arrangers"), BANK OF AMERICA, N.A. and CREDIT SUISSE
FIRST BOSTON, as syndication agents (collectively, in such capacities, the
"Syndication Agents"), EUROHYPO AG, NEW YORK BRANCH, as documentation agent (in
such capacity, the "Documentation Agent"), XXXXXX COMMERCIAL PAPER INC., as
Tranche B administrative agent for the Tranche B Term Loan Facility (in such
capacity, the "Tranche B Administrative Agent"), and WACHOVIA BANK, NATIONAL
ASSOCIATION, as general administrative agent (in such capacity, the "General
Administrative Agent").
W I T N E S S E T H:
WHEREAS, the Partnership, the Company, the General Administrative
Agent and certain of the Lenders are parties to the Term Loan Agreement, dated
as of May 14, 2004 (the "Existing Credit Agreement");
WHEREAS, the parties wish to amend and restate the Existing Credit
Agreement pursuant to this Agreement;
WHEREAS, Holdings, Red Acquisition, LLC, a Maryland limited
liability company and a wholly owned subsidiary of Holdings ("Merger Sub"), and
The Xxxxx Company, a Maryland corporation, have entered into a Merger Agreement,
dated as of August 19, 2004, (as amended, supplemented or otherwise modified,
the "Merger Agreement"), pursuant to which Merger Sub will merge with and into
The Xxxxx Company (the "Merger"), with The Xxxxx Company continuing as the
surviving corporation of the Merger;
WHEREAS, the Borrowers have requested the Lenders make available the
credit facilities described in this Agreement to finance a portion of the cost
of the Merger, the refinancing of certain existing borrowings of the Borrowers
and borrowings of the Target, and the payment of certain fees and expenses
related to the Merger, and to provide for the ongoing general corporate needs of
the Borrowers and their Subsidiaries; and
WHEREAS, the Lenders party hereto are willing to make such credit
facilities available upon and subject to the terms and conditions hereinafter
set forth;
NOW, THEREFORE, in consideration of the premises and the agreements
hereinafter set forth, the parties hereto hereby agree that, upon the
effectiveness of this Agreement, the Existing Credit Agreement is hereby amended
and restated in its entirety as follows:
SECTION 1. DEFINITIONS
1.1 Defined Terms. As used in this Agreement, the terms listed in
this Section 1.1 shall have the respective meanings set forth in this Section
1.1.
"Acknowledgment Agreements": the Acknowledgment Agreements with
respect to the Merger and the Guarantee and Pledge Agreement, to be executed and
delivered in substantially the form of Exhibit L, as the same may be amended,
supplemented or otherwise modified from time to time.
"Acquisition Indebtedness": Indebtedness of a Group Member (a) that
is not Recourse Indebtedness, and (b) the proceeds of which are used by the
relevant Group Member to make an acquisition in accordance with Section 7.7(g),
if after giving pro forma effect thereto, the Leverage Ratio shall not have
increased.
"Adjusted EBITDA": with respect to any GGP Property, for the
immediately preceding consecutive four calendar quarters, an amount equal to (a)
total revenues relating to such GGP Property for such period determined in
accordance with GAAP, less (b) total operating expenses relating to such GGP
Property (including applicable management fees and costs) for such period
determined in accordance with GAAP and, for the purposes of calculating the
Fixed Charge Coverage Ratio only, the Capital Improvement Reserve for such
period, plus (c) to the extent subtracted pursuant to clause (b) above,
interest, income taxes (but not real estate taxes), depreciation, amortization
and other non-cash charges determined in accordance with GAAP (other than
non-cash charges that constitute an accrual of or reserve for future cash
payments), which amount shall be adjusted to exclude extraordinary and
nonrecurring items (including, without limitation, sales of GGP Properties or
Minority Holdings) and to eliminate the straight-lining of rents; provided,
however, that (x) for each GGP Property which has been owned by any Consolidated
Entity or a Minority Holding or open for business for a period of less than four
calendar quarters (but at least one quarter), Adjusted EBITDA shall be
calculated on the basis of Adjusted EBITDA determined as of the first day of
each calendar quarter for the immediately preceding consecutive one, two or
three calendar quarters, as applicable with respect to the length of ownership
or since opening, annualized and (y) for each GGP Property which has been owned
by any Consolidated Entity or a Minority Holding or open for business for a
period of less than one quarter, Adjusted EBITDA shall be calculated on a pro
forma basis reasonably acceptable to the Administrative Agent. Adjusted EBITDA
shall be determined by reference to Holdings' statement of operations for the
applicable period. Notwithstanding anything to the contrary contained herein,
(1) Adjusted EBITDA shall not include any revenues generated by or allocable to
any GGP Property to the extent that the Investment in such GGP Property violates
Section 7.7; (2) Adjusted EBITDA shall not include any revenues generated by or
allocable to any Real Estate Under Construction with respect to which Holdings
elects to include Construction Asset Cost in Capitalization Value (provided,
however, that such revenues may be included to the extent that (A) the
construction in question constitutes renovation or expansion of a GGP Property
that is otherwise completed, open for business and operational, (B) the
construction in question will not materially interrupt, limit or impair such
ongoing business and operations, and (C) the inclusion of both such revenues in
Adjusted EBITDA and such Construction Asset Cost in Capitalization Value is not
duplicative); (3) the headquarters building located at 000 Xxxxx Xxxxxx Xxxxx,
Xxxxxxx, Xxxxxxxx is not a GGP Property for purposes of this definition; and (4)
Adjusted EBITDA for any period of four consecutive calendar quarters shall not
include any revenues generated by or allocable to any GGP Property Disposed of
by any Consolidated Entity or any Minority Holding during such period (assuming
the consummation of such Disposition occurred on the first day of such period).
"Adjustment Date": as defined in the Pricing Grid.
"Administrative Agent": (i) with respect to any provision of this
Agreement or duty specified in this Agreement that relates to the Tranche B Term
Loan Facility, the Tranche B Administrative Agent, (ii) with respect to any
provision of this Agreement or duty specified in this Agreement that relates to
the CMBS Bridge Loan Facility, the Tranche A Term Loan Facility or the Revolving
Credit Facility, the General Administrative Agent and (iii) otherwise, the
General Administrative Agent.
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"Affiliate": as to any Person, any other Person that, directly or
indirectly, is in control of, is controlled by, or is under common control with,
such Person. For purposes of this definition, "control" of a Person means the
power, directly or indirectly, either to (a) vote 15% or more of the equity
securities having ordinary voting power for the election of directors (or
persons performing similar functions) of such Person or (b) direct or cause the
direction of the management and policies of such Person, whether by contract or
otherwise.
"Agents": the collective reference to the Syndication Agents, the
Documentation Agent, the Tranche B Administrative Agent and the General
Administrative Agent.
"Aggregate Exposure": with respect to any Lender at any time, an
amount equal to (a) until the Closing Date, the aggregate amount of such
Lender's Commitments at such time and (b) thereafter, the sum of (i) the
aggregate then unpaid principal amount of such Lender's Term Loans and (ii) the
amount of such Lender's Revolving Credit Commitment then in effect or, if the
Revolving Credit Commitments have been terminated, the amount of such Lender's
Revolving Extensions of Credit then outstanding.
"Aggregate Exposure Percentage": with respect to any Lender at any
time, the ratio (expressed as a percentage) of such Lender's Aggregate Exposure
at such time to the sum of the Aggregate Exposures of all Lenders at such time.
"Agreement": this Amended and Restated Credit Agreement, as further
amended, supplemented or otherwise modified from time to time on or after the
date hereof.
"Applicable Margin": for each Type of Loan under each Facility, the
rate per annum set forth opposite such Facility under the relevant column
heading below:
Base Rate Eurodollar
Loans Loans
--------- ----------
Revolving Credit Facility
(including Swing Line Loans) 1.25% 2.25%
CMBS Bridge Loan Facility 1.00% 2.00%
Tranche A Term Loan Facility 1.25% 2.25%
Tranche B Term Loan Facility 1.50% 2.50%
; provided, that on and after the first Adjustment Date occurring after the
completion of two full fiscal quarters of Holdings after the Closing Date, the
Applicable Margins with respect to Revolving Credit Loans, Swing Line Loans and
Tranche A Term Loans will be determined pursuant to the Pricing Grid.
"Application": an application, in such form as the Issuing Lender
may specify from time to time, requesting the Issuing Lender to issue a Letter
of Credit.
"Arrangers": as defined in the preamble hereto.
"Asset Sale": any Disposition of Property or series of related
Dispositions of Property (excluding any such Disposition permitted by clause
(a), (b), (c), (d) or (f) of Section 7.5) which yields net proceeds to any Group
Member in excess of $1,000,000.
"Assignee": as defined in Section 10.6(c).
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"Assignment and Acceptance": an Assignment and Acceptance
substantially in the form of Exhibit D delivered (with blanks appropriately
completed) to the Administrative Agent in connection with an assignment of a
Lender's interest under this Agreement in accordance with the provisions of
Section 10.6.
"Assignor": as defined in Section 10.6(c).
"Available Revolving Credit Commitment": with respect to any
Revolving Credit Lender at any time, an amount equal to the excess, if any, of
(a) such Lender's Revolving Credit Commitment then in effect over (b) such
Lender's Revolving Extensions of Credit then outstanding; provided, that in
calculating any Lender's Revolving Extensions of Credit for the purpose of
determining such Lender's Available Revolving Credit Commitment pursuant to
Section 2.9(a), the aggregate principal amount of Swing Line Loans then
outstanding shall be deemed to be zero.
"Base Rate": for any day, a rate per annum (rounded upwards, if
necessary, to the next 1/16 of 1%) equal to the greater of (a) the Federal Funds
Effective Rate in effect on such day plus -1/2 of 1% and (b) the Prime Rate in
effect on such day. For purposes hereof: "Prime Rate" shall mean the prime
lending rate as set forth on the British Banking Association Telerate Page 5 (or
such other comparable publicly available page as may, in the reasonable opinion
of the Administrative Agent after notice to the relevant Borrower, replace such
page for the purpose of displaying such rate if such rate no longer appears on
the British Bankers Association Telerate page 5), as in effect from time to
time. The Prime Rate is a reference rate and does not necessarily represent the
lowest or best rate actually available. Any change in the Base Rate due to a
change in the Prime Rate or the Federal Funds Effective Rate shall be effective
as of the opening of business on the effective day of such change in the Prime
Rate or the Federal Funds Effective Rate, respectively.
"Base Rate Loans": Loans for which the applicable rate of interest
is based upon the Base Rate.
"Benefitted Lender": as defined in Section 10.7.
"Board": the Board of Governors of the Federal Reserve System of the
United States (or any successor).
"Borrower": as defined in the preamble hereto.
"Borrower Operating Agreement": the Second Amended and Restated
Operating Agreement of the Company dated April 17, 2002, as amended by the First
Amendment dated April 23, 2002, the Second Amendment dated May 13, 2002, the
Third Amendment dated October 30, 2002, the Fourth Amendment dated April 7,
2003, and the Fifth Amendment dated April 11, 2003, as such agreement may be
amended, restated, modified or supplemented from time to time as permitted under
Section 7.13.
"Borrower Partnership Agreement": the Second Amended and Restated
Agreement of Limited Partnership of the Partnership dated April 1, 1998, as
amended by the First Amendment dated as of June 10, 1998, the Second Amendment
dated as of June 29, 1998, the Third Amendment dated February 15, 2002, the
Amendment dated as of April 24, 2002, the Fourth Amendment dated July 10, 2002,
the Amendment dated November 27, 2002, the Sixth Amendment dated November 20,
2003, the Amendment dated December 11, 2003 and the Amendment dated March 5,
2004, and as supplemented by joinders of certain third parties as limited
partners in the Partnership, as such agreement may be amended, restated,
modified or supplemented from time to time as permitted under Section 7.13.
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"Borrowing Date": any Business Day specified by the relevant
Borrower as a date on which such Borrower requests the relevant Lenders to make
Loans hereunder.
"Borrowing Notice": with respect to any request for borrowing of
Loans hereunder, a notice from a Borrower, substantially in the form of, and
containing the information prescribed by, Exhibit J, delivered to the
Administrative Agent.
"Business Day": (a) for all purposes other than as covered by clause
(b) below, a day other than a Saturday, Sunday or other day on which commercial
banks in New York City are authorized or required by law to close and (b) with
respect to all notices and determinations in connection with, and payments of
principal and interest on, Eurodollar Loans, any day which is a Business Day
described in clause (a) and which is also a day for trading by and between banks
in Dollar deposits in the interbank eurodollar market.
"Capital Expenditures": for any period, with respect to any Person,
the aggregate of all expenditures by such Person for the acquisition or leasing
(pursuant to a Capital Lease) of fixed or capital assets or additions to
equipment (including replacements, capitalized repairs and improvements during
such period) which are required to be capitalized under GAAP on a balance sheet
of such Person; provided, however, Capital Expenditures shall include (a) the
sum of all expenditures by the Group Members and the portion of expenditures by
Minority Holdings allocable to the Group Members for tenant improvements,
leasing commissions and property level capital expenditures (e.g., roof
replacement, parking lot replacement, etc.) which are not recoverable from
tenants or which have been written-off as receivables on the books of such
Person and (b) capital expenditures in connection with the purchase of new
Properties or expansions of existing Properties.
"Capital Improvement Reserve": (a) $0.25 per annum per square foot
of mall store gross leasable area in Real Property and (b) $0.30 per annum per
square foot of office gross leasable area in Real Property, in each case, owned
by any Consolidated Entity, and in that portion of real property owned by
Minority Holdings allocable, on a pro rata basis, to Holdings or any
Consolidated Entity.
"Capital Lease": any lease of any property (whether real, personal
or mixed) by a Person as lessee which, in conformity with GAAP, is accounted for
as a capital lease on the balance sheet of that Person.
"Capital Lease Obligations": with respect to any Person, the
obligations of such Person to pay rent or other amounts under any lease of (or
other arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as Capital Leases on a balance sheet of such Person under GAAP;
and, for the purposes of this Agreement, the amount of such obligations at any
time shall be the capitalized amount thereof at such time determined in
accordance with GAAP.
"Capital Stock": any and all capital stock of a corporation, any and
all equivalent ownership interests in a Person (other than a corporation) and
any and all warrants, rights or options to purchase any of the foregoing.
"Capitalization Value": on any date, (A) the sum, without
duplication, of (a) the Combined EBITDA with respect to all GGP Properties
(except New Acquisitions) which are mall properties for the period of four
consecutive fiscal quarters most recently ended divided by 7%, (b) the Combined
EBITDA with respect to all GGP Properties (except New Acquisitions) which are
office properties or mixed use properties for the period of four consecutive
fiscal quarters most recently ended divided by 8%, (c) the most recent value of
Community Development Properties (without deduction for
5
the value of the interests of the Xxxxxx heirs therein under the Xxxxxx
Agreement to the extent that, upon the sale of such Community Development
Properties, such Xxxxxx heirs receive consideration only in the form of Capital
Stock, but otherwise less the portion of such most recent value attributable to
any minority interest holders) as established by Xxxxxxxx Associates, Inc. (or
another appraiser selected by Holdings and reasonably satisfactory to the
Administrative Agent), provided that the Required Lenders may require updates
thereof from time to time and as required when any material portion of such
properties is sold or transferred, (d) for all New Acquisitions owned by any
Consolidated Entity, the cost basis of such New Acquisitions as determined in
accordance with GAAP, (e) for all New Acquisitions owned by a Minority Holding,
the portion of the cost basis of such New Acquisitions allocable to any
Consolidated Entity as determined in accordance with GAAP, (f) unrestricted cash
and Cash Equivalents, (g) Inactive Assets, other than Construction Assets, at
the lesser of cost or fair market value, and (h) Construction Asset Cost, less
(B) the Capital Improvement Reserve for the period of four consecutive fiscal
quarters most recently ended; provided, however, that (i) Capitalization Value
shall include Inactive Assets and Construction Asset Cost only to the extent
that (x) Inactive Assets and Construction Asset Cost do not exceed, in the
aggregate, 8% of Capitalization Value and (y) Inactive Assets do not exceed
$500,000,000, (ii) Capitalization Value shall not include any Inactive Asset or
Construction Asset Cost incurred with respect to any Construction Asset to the
extent the incurrence of such Construction Asset Cost or the Investment in such
Inactive Asset or Construction Asset violates Section 7.7 and (iii)
Capitalization Value shall not include Construction Asset Cost as to any Real
Estate Under Construction with respect to which Holdings elects to include
revenues in Adjusted EBITDA (provided, however, that such Construction Asset
Cost may be included to the extent that (A) the construction in question
constitutes renovation or expansion of a GGP Property that is otherwise
completed, open for business and operational, (B) the construction in question
will not materially interrupt, limit or impair such ongoing business and
operations, and (C) the inclusion of both such revenues in Adjusted EBITDA and
such Construction Asset Cost in Capitalization Value is not duplicative).
"Cash Equivalents": (a) marketable direct obligations issued by, or
unconditionally guaranteed by, the United States government or issued by any
agency thereof and backed by the full faith and credit of the United States, in
each case maturing within one year from the date of acquisition; (b)
certificates of deposit, time deposits, eurodollar time deposits, bankers'
acceptances or overnight bank deposits having maturities of one year or less
from the date of acquisition issued by any Lender or by any commercial bank
organized under the laws of the United States of America, any state thereof, the
District of Columbia, any foreign bank, or its branches or agencies (fully
protected against currency fluctuations) having combined capital and surplus of
not less than $500,000,000; (c) commercial paper of an issuer rated at least A-2
by S&P or P-2 by Xxxxx'x, or carrying an equivalent rating by a nationally
recognized rating agency, if both of the two named rating agencies cease
publishing ratings of commercial paper issuers generally, and maturing one year
or less from the date of acquisition; (d) repurchase obligations of any Lender
or of any commercial bank satisfying the requirements of clause (b) of this
definition, having a term of not more than 30 days with respect to securities
issued or fully guaranteed or insured by the United States government; (e)
securities with maturities of one year or less from the date of acquisition
issued or fully guaranteed by any state, commonwealth or territory of the United
States, by any political subdivision or taxing authority of any such state,
commonwealth or territory or by any foreign government, the securities of which
state, commonwealth, territory, political subdivision, taxing authority or
foreign government (as the case may be) are rated at least A by S&P or A by
Xxxxx'x; (f) securities with maturities of one year or less from the date of
acquisition backed by standby letters of credit issued by any Lender or any
commercial bank satisfying the requirements of clause (b) of this definition;
and (g) shares of money market mutual or similar funds which invest exclusively
in assets satisfying the requirements of clauses (a) through (f) of this
definition.
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"CERCLA": the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, 42 U.S.C. Sections 9601 et seq., any amendments thereto,
any successor statutes, and any regulations or guidance having the force of law
promulgated thereunder.
"Change of Control": the occurrence of any of the following events:
(a) (i) more than two of Xxxxxxx Xxxxxxxxx, Xxxx Xxxxxxxxx, Xxxxxx Xxxxxxxx, and
Xxxxxxx Xxxxxxxx, or any replacement for any of the foregoing Persons previously
approved by the Required Lenders pursuant to clause (ii) below, shall cease to
be senior officers of Holdings, and (ii) if the circumstances described in
clause (i) shall occur, the senior management positions of the foregoing Persons
who cease to be senior officers as aforesaid are not filled within 180 days
after the vacancy in such positions arise with replacements approved by the
Required Lenders; (b) (i) Holdings shall cease to own and control, of record and
beneficially, directly or indirectly, (x) at least 66 2/3% of the aggregate
outstanding voting Capital Stock of the Partnership or (y) at least 66 2/3% of
the aggregate outstanding Capital Stock of the Partnership, in each case free
and clear of all Liens (except Liens created by the Security Documents and Liens
for taxes described in Section 7.3(a)), (ii) after giving effect to the
intercompany transactions to be consummated on the Closing Date, the Partnership
shall cease to own and control, of record and beneficially, (x) directly or
indirectly, 100% of each class of outstanding common equity interests of the
Company, (y) directly, 99% of each class of outstanding Capital Stock of the
Target or (z) directly, 100% of each class of outstanding Capital Stock of Xxxxx
LLC, in each case free and clear of all Liens (except Liens created by the
Security Documents and Liens for taxes described in Section 7.3(a)), or (iii)
Xxxxx LLC shall cease to own and control, of record and beneficially, directly,
1% of each class of outstanding Capital Stock of the Target free and clear of
all Liens (except Liens created by the Security Documents and Liens for taxes
described in Section 7.3(a)); or (c) a Specified Change of Control.
"Closing Date": the date on which the conditions precedent set forth
in Section 5.1 shall have been satisfied, which date shall be not later than
February 28, 2005.
"CMBS Bridge Loan": as defined in Section 2.1(a).
"CMBS Bridge Loan Commitment": as to any CMBS Bridge Loan Lender,
the obligation of such Lender, if any, to make a CMBS Bridge Loan to the
Borrowers hereunder in a principal amount not to exceed the amount set forth
under the heading "CMBS Bridge Loan Commitment" opposite such Lender's name on
Schedule 1 to the Lender Addendum delivered by such Lender, or, as the case may
be, in the Assignment and Acceptance pursuant to which such Lender became a
party hereto, as the same may be changed from time to time pursuant to the terms
hereof. The original aggregate amount of the CMBS Bridge Loan Commitments is
$1,145,000,000.
"CMBS Bridge Loan Facility": as defined in the definition of
"Facility" in this Section 1.1.
"CMBS Bridge Loan Lender": each Lender that has a CMBS Bridge Loan
Commitment or is the holder of a CMBS Bridge Loan.
"CMBS Bridge Loan Maturity Date": (a) May 12, 2005; and (b) if any
Borrower exercises its option to extend such maturity date pursuant to Section
2.3(a), solely with respect to the CMBS Bridge Loans so extended, November 12,
2005.
"CMBS Bridge Loan Percentage": as to any CMBS Bridge Loan Lender at
any time, the percentage which such Lender's CMBS Bridge Loan Commitment then
constitutes of the aggregate CMBS Bridge Loan Commitments (or, at any time after
the Closing Date, the percentage which the
7
aggregate principal amount of such Lender's CMBS Bridge Loans then outstanding
constitutes of the aggregate principal amount of the CMBS Bridge Loans then
outstanding).
"Code": the Internal Revenue Code of 1986, as amended from time to
time.
"Collateral": all Property of the Loan Parties, now owned or
hereafter acquired, upon which a Lien is purported to be created by any Security
Document.
"Combined EBITDA": for any period, the sum of (a) 100% of the
Adjusted EBITDA of the Consolidated Entities for such period with respect to GGP
Properties owned by any Consolidated Entity; and (b) the portion of the Adjusted
EBITDA of the Minority Holdings for such period allocable to any Consolidated
Entity or the Management Company in accordance with GAAP; provided, however,
that Combined EBITDA shall include Adjusted EBITDA allocable to the Management
Company only to the extent that Adjusted EBITDA allocable to the Management
Company does not exceed 4% of Combined EBITDA.
"Combined Equity Value": on any date, the Capitalization Value on
such date minus Total Adjusted Outstanding Indebtedness on such date.
"Combined Interest Expense": for any period, the sum of (a) interest
expense of Holdings and the Consolidated Entities paid during such period, (b)
interest expense of Holdings and the Consolidated Entities accrued for such
period to the extent not paid during such period, (c) the portion of the
interest expense of Minority Holdings allocable to Holdings or any Consolidated
Entity in accordance with GAAP and paid during such period, and (d) the portion
of the interest expense of Minority Holdings allocable to Holdings or any
Consolidated Entity in accordance with GAAP and accrued for such period, to the
extent not paid during such period, in each case including participating
interest expense, but excluding extraordinary interest expense and prepayment
fees, premiums or penalties and net of amortization of deferred costs associated
with new financings or refinancings of existing Indebtedness; provided, however,
that (i) with respect to any GGP Property that Holdings, any Consolidated Entity
or a Minority Holding has owned for less than one year (but at least one
quarter) and which is included in the calculation of Adjusted EBITDA, the
interest expense with respect thereto (incurred in connection with any Loans
made in connection with the acquisition of such GGP Property or in connection
with any mortgage loans entered into or assumed in connection therewith) shall
be determined as of the first day of each fiscal quarter for the immediately
preceding consecutive one, two or three fiscal quarters, as applicable with
respect to the period such GGP Property has been owned by Holdings, any
Consolidated Entity or a Minority Holding, annualized, (ii) for each GGP
Property which has been owned by Holdings, any Consolidated Entity or a Minority
Holding or open for business for a period of less than one quarter, the interest
expense with respect thereto shall be calculated on a pro forma basis reasonably
acceptable to the Administrative Agent and (iii) dividends on preferred stock or
other preferred securities shall not be considered part of Combined Interest
Expense.
"Commitment": with respect to any Lender, each of the CMBS Bridge
Loan Commitment, the Tranche A Term Loan Commitment, the Tranche B Term Loan
Commitment and the Revolving Credit Commitment of such Lender.
"Commitment Fee Rate": 1/2 of 1% per annum.
"Commonly Controlled Entity": an entity, whether or not
incorporated, that is under common control with the relevant Borrower within the
meaning of Section 4001 of ERISA or is part of a group that includes such
Borrower and that is treated as a single employer under Section 414 of the Code.
8
"Community Development Properties": the Xxxxxxxxx, Nevada and
Columbia, Maryland planned communities and other current and future planned
communities owned by any Consolidated Entity which have been valued by an
independent appraiser which is qualified as a member of the Appraisal Institute
and are being so valued not less often than annually.
"Company": as defined in the preamble hereto.
"Compliance Certificate": a certificate duly executed by a
Responsible Officer, substantially in the form of Exhibit B.
"Confidential Information Memorandum": the Confidential Information
Memorandum dated October 2004 and furnished to the initial Lenders in connection
with the syndication of the Facilities.
"Consolidated Current Assets": of any Person at any date, all
amounts (other than cash and Cash Equivalents) that would, in conformity with
GAAP, be set forth opposite the caption "total current assets" (or any like
caption) on a consolidated balance sheet of such Person and its Subsidiaries at
such date.
"Consolidated Current Liabilities": of any Person at any date, all
amounts that would, in conformity with GAAP, be set forth opposite the caption
"total current liabilities" (or any like caption) on a consolidated balance
sheet of such Person and its Subsidiaries at such date, but excluding, with
respect to Holdings, (a) the current portion of any Funded Debt of the Group
Members and (b), without duplication, all Indebtedness consisting of Revolving
Credit Loans or Swing Line Loans, to the extent otherwise included therein.
"Consolidated Entities": the Borrowers and the other Wholly Owned
Subsidiaries of Holdings.
"Consolidated Net Income": of any Person for any period, the
consolidated net income (or loss) of such Person and its Subsidiaries for such
period, determined on a consolidated basis in accordance with GAAP; provided,
that in calculating Consolidated Net Income of Holdings and its consolidated
Subsidiaries for any period, there shall be excluded (a) the income (or deficit)
of any Person accrued prior to the date it becomes a Subsidiary of Holdings or
is merged into or consolidated with any Group Member, (b) the income (or
deficit) of any Person (other than a Subsidiary of Holdings) in which any Group
Member has an ownership interest, except to the extent that any such income is
actually received by such Group Member in the form of dividends or similar
distributions and (c) the undistributed earnings of any Subsidiary of Holdings
to the extent that the declaration or payment of dividends or similar
distributions by such Subsidiary is not at the time permitted by the terms of
any Contractual Obligation (other than under any Loan Document) or Requirement
of Law applicable to such Subsidiary.
"Consolidated Working Capital": at any date, the difference of (a)
Consolidated Current Assets of Holdings on such date less (b) Consolidated
Current Liabilities of Holdings on such date.
"Construction Asset": any GGP Property which is raw land, vacant
out-parcels or Real Estate Under Construction.
"Construction Asset Cost": with respect to all Construction Assets,
the aggregate sums expended on the construction of such improvements (including
land acquisition costs).
9
"Construction Related Indebtedness": Indebtedness incurred to
finance construction of specific Real Estate Under Construction and which is
secured by such Real Estate Under Construction.
"Contaminant": any waste, pollutant, hazardous substance, toxic
substance, hazardous waste, special waste, petroleum or petroleum-derived
substance or waste, radioactive materials, asbestos (in any form or condition),
polychlorinated biphenyls (PCBs), or any constituent of any such substance or
waste, and includes, but is not limited to, these terms as defined in federal,
state or local laws or regulations; provided, however, that "Contaminant" shall
not include the foregoing items to the extent (a) the same exist on the
applicable Property in retail packaging for sale as consumer products or are
present in customary amounts in connection with the construction, operation,
heating and cooling or repair and maintenance activities at the Property and are
stored and used in accordance with all Environmental Laws or (b) are used in
connection with a tire or battery retail store provided the same are stored,
sold and used in accordance with all Environmental Laws.
"Contingent Obligation": as to any Person, without duplication, (a)
any contingent obligation of such Person required to be shown on such Person's
balance sheet in accordance with GAAP, and (b) any obligation required to be
disclosed in the footnotes to such Person's financial statements in accordance
with GAAP, guaranteeing partially or in whole any Non-Recourse Indebtedness,
lease, dividend or other obligation, exclusive of (i) contractual indemnities
(including, without limitation, any indemnity or price-adjustment provision
relating to the purchase or sale of securities or other assets) and (ii)
guarantees of non-monetary obligations (other than guarantees of completion)
which have not yet been called on or quantified, of such Person or of any other
Person. The amount of any Contingent Obligation described in clause (b) above in
this definition shall be deemed to be (A) with respect to a guaranty of interest
or interest and principal, or operating income guaranty, the sum of all payments
required to be made thereunder (which in the case of an operating income
guaranty shall be deemed to be equal to the debt service for the note secured
thereby), calculated at the interest rate applicable to such Indebtedness,
through (x) in the case of an interest or interest and principal guaranty, the
stated date of maturity of the obligation (and commencing on the date interest
could first be payable thereunder), or (y) in the case of an operating income
guaranty, the date through which such guaranty will remain in effect, and (B)
with respect to all guarantees not covered by the preceding clause (A) an amount
equal to the stated or determinable amount of the primary obligation in respect
of which such guaranty is made or, if not stated or determinable, the maximum
reasonably anticipated liability in respect thereof (assuming such Person is
required to perform thereunder) as recorded on the balance sheet and on the
footnotes to the most recent financial statements required to be delivered
pursuant to Section 6.1 hereto. Notwithstanding anything contained herein to the
contrary, guarantees of completion or other performance shall not be deemed to
be Contingent Obligations unless and until a claim for payment has been made
thereunder, at which time any such guaranty of completion or other performance
shall be deemed to be a Contingent Obligation in an amount equal to any such
claim. Subject to the preceding sentence, (a) in the case of a joint and several
guaranty given by such Person and another Person (but only to the extent such
guaranty is Recourse Indebtedness, directly or indirectly to any Group Member),
the amount of the guaranty shall be deemed to be 100% thereof unless and only to
the extent that (i) such other Person has delivered cash or Cash Equivalents to
secure all or any part of such Person's obligations under such joint and several
guaranty or (ii) such other Person holds an Investment Grade Credit Rating from
any of Fitch, Xxxxx'x or S&P or has creditworthiness otherwise reasonably
acceptable to the Administrative Agent, and (b) in the case of a guaranty
(whether or not joint and several) of an obligation otherwise constituting
Indebtedness of such Person, the amount of such guaranty shall be deemed to be
only that amount in excess of the amount of the obligation constituting
Indebtedness of such Person. Notwithstanding anything contained herein to the
contrary, "Contingent Obligations" shall not be deemed to include guarantees of
loan commitments or of construction loans to the extent the same have not been
drawn.
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"Contractual Obligation": as to any Person, any provision of any
securities issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
Property is bound.
"Control Agreement": the Control Agreement with respect to all
dividends and other distributions received from the Target to be executed and
delivered by the Partnership, substantially in the form of Exhibit K, as the
same may be amended, supplemented or otherwise modified from time to time.
"Credit Rating": the publicly announced rating of the long-term
unsecured debt of a Person given by Fitch, Xxxxx'x or S&P.
"Default": any of the events specified in Section 8, whether or not
any requirement for the giving of notice, the lapse of time, or both, has been
satisfied.
"Disposition": with respect to any Property, any sale, lease (other
than any lease entered into in the ordinary course of business), sale and
leaseback, assignment, conveyance, transfer or other disposition thereof;
provided, however, that a Disposition shall not include any such transaction
solely in connection with the mortgaging or other transfer of a Property as
security for any permitted Secured Mortgage Indebtedness. The terms "Dispose"
and "Disposed of" shall have correlative meanings.
"Documentation Agent": as defined in the preamble hereto.
"Dollars" and "$": dollars in lawful currency of the United States
of America.
"Domestic Subsidiary": any Subsidiary of Holdings organized under
the laws of any jurisdiction within the United States of America.
"Environmental Laws": any and all laws, rules, orders, regulations,
statutes, ordinances, guidelines, codes, decrees, or other legally enforceable
requirements (including, without limitation, common law) of any international
authority, foreign government, the United States, or any state, local, municipal
or other governmental authority of competent jurisdiction and authority,
regulating, relating to or imposing liability or standards of conduct concerning
protection of the environment or of human health as it relates to any
Contaminant exposure, or employee health and safety relating to any Contaminant,
as has been, is now, or may at any time hereafter be, in effect, including,
without limitation, the Clean Air Act of 1970 (42 U.S.C. Section 7401 et seq.),
as amended, the Clean Water Act of 1977 (15 U.S.C. Section 2601 et seq.), as
amended, CERCLA, RCRA, any so-called "Superfund" or "Superlien" law, the Toxic
Substances Control Act of 1976 (33 U.S.C. Section 1251 et seq.), as amended, and
those portions of OSHA and public health codes relating to Contaminant handling
or exposure, each as from time to time in effect.
"Environmental Lien": a Lien in favor of any Governmental Authority
for any (a) liabilities under any Environmental Law, or (b) damages arising
from, or costs incurred by such Governmental Authority in response to, a Release
or threatened Release of a Contaminant into the environment.
"Environmental Permits": any and all permits, licenses, approvals,
registrations, notifications, exemptions and other authorizations required under
any Environmental Law.
"Equipment": equipment which is personal property used in connection
with the maintenance of any GGP Property.
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"ERISA": the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"Eurocurrency Reserve Requirements": for any day, the aggregate
(without duplication) of the maximum rates (expressed as a decimal fraction) of
reserve requirements in effect on such day (including, without limitation,
basic, supplemental, marginal and emergency reserves) under any regulations of
the Board or other Governmental Authority having jurisdiction with respect
thereto dealing with reserve requirements prescribed for eurocurrency funding
(currently referred to as "Eurocurrency Liabilities" in Regulation D of the
Board) maintained by a member bank of the Federal Reserve System.
"Eurodollar Base Rate": with respect to each day during each
Interest Period, the rate per annum determined on the basis of the rate for
deposits in Dollars for a period equal to such Interest Period commencing on the
first day of such Interest Period appearing on Page 3750 of the Telerate screen
as of 11:00 A.M., London time, two Business Days prior to the beginning of such
Interest Period. In the event that such rate does not appear on Page 3750 of the
Telerate screen (or otherwise on such screen), the "Eurodollar Base Rate" for
purposes of this definition shall be determined by reference to such other
comparable publicly available service for displaying eurodollar rates as may be
reasonably selected by the Administrative Agent.
"Eurodollar Loans": Loans for which the applicable rate of interest
is based upon the Eurodollar Rate.
"Eurodollar Rate": with respect to each day during each Interest
Period, a rate per annum determined for such day in accordance with the
following formula (rounded upward to the nearest 1/100th of 1%):
Eurodollar Base Rate
----------------------------------------
1.00 - Eurocurrency Reserve Requirements
"Eurodollar Tranche": the collective reference to Eurodollar Loans
under a particular Facility the then current Interest Periods with respect to
all of which begin on the same date and end on the same later date (whether or
not such Loans shall originally have been made on the same day).
"Event of Default": any of the events specified in Section 8,
provided that any requirement for the giving of notice, the lapse of time, or
both, has been satisfied.
"Excess Cash Flow": for any fiscal year of Holdings, the difference,
if any, of (a) the sum, without duplication, of (i) Consolidated Net Income of
Holdings for such fiscal year, (ii) the amount of all non-cash charges
(including depreciation and amortization) deducted in arriving at such
Consolidated Net Income, (iii) the amount of the decrease, if any, in
Consolidated Working Capital for such fiscal year, (iv) the aggregate net amount
of non-cash loss on the Disposition of Property by the Group Members during such
fiscal year (other than sales of inventory in the ordinary course of business),
to the extent deducted in arriving at such Consolidated Net Income and (v) the
net increase during such fiscal year (if any) in deferred tax accounts of
Holdings minus (b) the sum, without duplication, of (i) the amount of all
non-cash credits included in arriving at such Consolidated Net Income, (ii) the
aggregate amount actually paid by the Group Members in cash during such fiscal
year on account of Capital Expenditures and capital expenditures incurred in
connection with Real Estate Under Construction (minus the principal amount of
Indebtedness incurred in connection with such expenditures), (iii) the aggregate
amount of all prepayments of Revolving Credit Loans and Swing Line Loans during
such fiscal year to the extent accompanying permanent optional reductions of the
Revolving Credit Commitments and all optional prepayments of the Term Loans
during such fiscal year, (iv) the aggregate amount of all
12
regularly scheduled principal payments of Funded Debt (including, without
limitation, the Term Loans) of the Group Members made during such fiscal year
(other than in respect of any revolving credit facility to the extent there is
not an equivalent permanent reduction in commitments thereunder), (v) the amount
of the increase, if any, in Consolidated Working Capital for such fiscal year,
(vi) the aggregate net amount of non-cash gain on the Disposition of Property by
the Group Members during such fiscal year (other than sales of inventory in the
ordinary course of business), to the extent included in arriving at such
Consolidated Net Income, (vii) the net decrease during such fiscal year (if any)
in deferred tax accounts of Holdings and (viii) the aggregate amount of all
dividends paid in cash (other than to a Group Member) during such fiscal year by
the Group Members.
"Excess Cash Flow Application Date": as defined in Section 2.12(b).
"Excluded Indebtedness": (a) any Construction Related Indebtedness,
(b) any Acquisition Indebtedness (provided that the aggregate amount thereof
that may be excluded from the mandatory prepayment requirements of Section 2.12
shall not exceed $500,000,000 during the term of this Agreement) and (c) any
Subordinated Debt to the extent, and only to the extent, the Net Cash Proceeds
are used to redeem the Xxxxxxx Preferred Stock.
"Existing Contractual Obligations": Contractual Obligations of any
Group Member in effect on the Closing Date.
"Existing Credit Facilities": (a) the Revolving and Term Credit
Agreement, dated as of April 16, 2003, among the Partnership and the Company, as
borrowers, the institutions party thereto, as lenders, Eurohypo AG, New York
branch, as administrative agent, and the other agents party thereto, (b) the
Third Amended and Restated Unsecured Revolving Credit Agreement, dated as of
July 30, 2003, among the Target, as borrower, JPMorgan Chase Bank, Bank One, NA,
Deutsche Bank Trust Company Americas and certain other banks, as lenders, Bank
One, NA, as administrative agent and the other agents party thereto and (c) the
Existing Credit Agreement; in each case, as amended.
"Existing Debt Instruments": (a) the Indenture, dated as of February
24, 1995, between the Target and XX Xxxxxx Trust Company, National Association
(as successor in interest to Bank One, National Association, formerly known as
the First National Bank of Chicago), and the Amended and Restated First
Supplemental Indenture, dated as of December 23, 2003, among the same parties to
such Indenture related to the Target's 6.94% Notes due 2008, (b) the Note
Purchase Agreement, dated as of June 28, 2001, between the Target and Teachers
Insurance and Annuity Association of America, as amended, (c) the $25,000,000
letter of credit facility with LaSalle (the "LaSalle Letter of Credit
Facility"), (d) the $3,148,850 letter of credit facility with M&T Bank due May
1, 2005 (the "M&T Letter of Credit Facility") and (e) the documents governing
the Goldman Preferred Stock.
"Existing Letters of Credit": the Letters of Credit listed on
Schedule 3.10.
"Existing Letter of Credit Issuer": each of Bank of America, N.A.
and Bank One, N.A.
"Extended CMBS Bridge Loan Maturity Date": November 12, 2005.
"Facility": each of (a) the CMBS Bridge Loan Commitments and the
CMBS Bridge Loans made thereunder (the "CMBS Bridge Loan Facility"), (b) the
Tranche A Term Loan Commitments and the Tranche A Term Loans made thereunder
(the "Tranche A Term Loan Facility"), (c) the Tranche B Term Loan Commitments
and the Tranche B Term Loans made thereunder (the "Tranche B Term Loan
Facility") and (d) the Revolving Credit Commitments and the extensions of credit
made thereunder (the "Revolving Credit Facility").
13
"Federal Funds Effective Rate": for any day, the weighted average of
the rates on overnight federal funds transactions with members of the Federal
Reserve System arranged by federal funds brokers, as published on the next
succeeding Business Day by the Federal Reserve Bank of New York, or, if such
rate is not so published for any day that is a Business Day, the average of the
quotations for the day of such transactions received by the Administrative Agent
from three federal funds brokers of recognized standing reasonably selected by
it.
"FFO": net income, excluding gains (or losses) from debt
restructuring and sales of property, plus depreciation and amortization, and
after adjustments for unconsolidated partnerships and joint ventures (which will
be calculated to reflect funds from operations on the same basis), as determined
and adjusted in accordance with the standards established from time to time by
the National Association of Real Estate Investment Trusts.
"Fitch": Fitch, Inc.
"Fixed Charge Coverage Ratio": for any period, the ratio of (a)
Combined EBITDA of the Consolidated Entities for such period to (b) Fixed
Charges for such period.
"Fixed Charges": for any period, the sum of (a) Combined Interest
Expense for such period and (b) the aggregate of all scheduled principal
payments on Total Adjusted Outstanding Indebtedness (other than the Loans)
according to GAAP made or required to be made during such fiscal period for
Holdings, the Consolidated Entities and Minority Holdings (but excluding balloon
payments of principal due upon the stated maturity of an Indebtedness), and (c)
the aggregate of all dividends payable during such period on the preferred stock
or other preferred securities of Holdings and the Consolidated Entities, and of
Minority Holdings allocable on a pro rata basis to Holdings or any Consolidated
Entity, which preferred securities are not owned by any Group Member (including
on any preferred units of the Company and Price Development Company, Limited
Partnership, a Maryland limited partnership, not owned by any Group Member).
"Foreign Subsidiary": any Subsidiary of Holdings that is not a
Domestic Subsidiary.
"Funded Debt": with respect to any Person, all Indebtedness of such
Person of the types described in clauses (a) through (e) of the definition of
"Indebtedness" in this Section 1.1.
"Funding Office": the office specified from time to time by the
Administrative Agent as its funding office by notice to the relevant Borrower
and the Lenders.
"GAAP": generally accepted accounting principles in the United
States of America as in effect from time to time.
"General Administrative Agent": as defined in the preamble hereto.
"GGP Property": any Real Property or personal property, plant,
building, facility, structure, underground storage tank or unit, equipment,
general intangible, receivable, or other asset owned, leased or operated by any
Consolidated Entity or any Minority Holding (including any surface water thereon
or adjacent thereto, and soil and groundwater thereunder).
"Goldman Preferred Stock": the 8.95% Series A Cumulative Redeemable
Preferred Units and 8.95% Series B Cumulative Redeemable Preferred Units of the
Company owned by GSEP 2000 Realty Corp. and GSEP 2002 Realty Corp.,
respectively, on the date hereof.
14
"Governmental Authority": any nation or government, any state or
other political subdivision thereof and any entity of competent authority and
jurisdiction exercising executive, legislative, judicial, taxing, regulatory or
administrative functions of or pertaining to government.
"Group Members": Holdings and all of its Subsidiaries, including,
without limitation, the Borrowers and the Target, as surviving corporation of
the Merger.
"Guarantee and Pledge Agreement": the Guarantee and Pledge Agreement
to be executed and delivered by Holdings, the Partnership and Xxxxx LLC,
substantially in the form of Exhibit A, as the same may be amended, supplemented
or otherwise modified from time to time.
"Guarantors": the collective reference to Holdings (with respect to
the Obligations of the Partnership and the Company), the Partnership (with
respect to the Obligations of Holdings and the Company) and Xxxxx LLC.
"Hedge Agreements": all interest rate or currency swaps, caps or
collar agreements, foreign exchange agreements, commodity contracts or similar
arrangements entered into by the Partnership or its Subsidiaries providing for
protection against fluctuations in interest rates, currency exchange rates,
commodity prices or the exchange of nominal interest obligations, either
generally or under specific contingencies.
"Holdings": as defined in the preamble hereto.
"Homart Portfolio": the portfolio of GGP Properties commonly
described by the Partnership as GGP/Homart and GGP/Homart II, and their
respective Subsidiaries and Investments.
"Xxxxxx Agreement": the Contingent Stock Agreement, effective as of
January 1, 1996, by the Target in favor of and for the benefit of the "Holders"
and the "Representatives" (as such terms are defined therein).
"Improvements": with respect to any Real Property, all buildings,
fixtures, structures, parking areas, landscaping and all other improvements
whether existing now or hereafter constructed, together with all machinery and
mechanical, electrical, HVAC and plumbing systems presently or hereafter located
thereon and used in the operation thereof, excluding (a) any such items owned by
utility service providers, (b) any such items owned by tenants or other
third-parties and (c) any items of personal property not constituting fixtures.
"Inactive Assets": without duplication, Construction Assets (other
than Real Estate Under Construction), loans receivable (including, without
limitation, purchase money and other mortgage loans), the amount of Capital
Expenditures made during the applicable period, and other miscellaneous Property
not described in any of the clauses (1) through (4) of Section 7.7(g), and the
headquarters buildings located at 000 Xxxxx Xxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx, and
00000 Xxxxxx Xxxxxxxx Xxxxxxxx, Xxxxxxxx, Xxxxxxxx, provided that the value of
such headquarters buildings for the purpose of calculating Inactive Assets shall
be as set forth in the most recent appraisal of said buildings received from
time to time by Holdings which appraisal is prepared by an MAI appraiser from a
nationally recognized appraisal firm in accordance with the requirements of
FIRREA. Holdings shall promptly deliver to Administrative Agent a copy of each
appraisal of said building received by Holdings from time to time.
"Indebtedness": of any Person at any date, without duplication, (a)
all indebtedness of such Person for borrowed money, (b) all obligations of such
Person for the deferred purchase price of Property or services (other than trade
payables and accrued expenses incurred in the ordinary course of
15
such Person's business), (c) all obligations of such Person evidenced by notes,
bonds, debentures or other similar instruments, (d) all indebtedness created or
arising under any conditional sale or other title retention agreement with
respect to Property acquired by such Person (even though the rights and remedies
of the seller or lender under such agreement in the event of default are limited
to repossession or sale of such Property), (e) all Capital Lease Obligations of
such Person, (f) all obligations of such Person, contingent or otherwise, as an
account party or applicant under acceptance, letter of credit, surety bond or
similar facilities, (g) all obligations of such Person, contingent or otherwise,
to purchase, redeem, retire or otherwise acquire for value any Capital Stock of
such Person, (h) all Contingent Obligations of such Person, (i) all obligations
of the kind referred to in clauses (a) through (h) above secured by (or for
which the holder of such obligation has an existing right, contingent or
otherwise, to be secured by) any Lien on Property (including, without
limitation, accounts and contract rights) owned by such Person, whether or not
such Person has assumed or become liable for the payment of such obligation, (j)
for the purposes of Section 8(e) only, the net obligations of such Person in
respect of Hedge Agreements and (k) all obligations of such Person in respect of
forward equity sales and similar purchase obligations. The Indebtedness of any
Person shall include the Indebtedness of any other entity (including any
partnership in which such Person is a general partner) to the extent such Person
is liable therefor as a result of such Person's ownership interest in or other
relationship with such entity, except to the extent the terms of such
Indebtedness expressly provide that such Person is not liable therefor.
"Indemnified Liabilities": as defined in Section 10.5.
"Indemnitee": as defined in Section 10.5.
"Initial CMBS Bridge Loan Maturity Date": May 12, 2005.
"Insolvency": with respect to any Multiemployer Plan, the condition
that such Plan is insolvent within the meaning of Section 4245 of ERISA.
"Insolvent": pertaining to a condition of Insolvency.
"Intellectual Property": the collective reference to all rights,
priorities and privileges relating to intellectual property, whether arising
under United States, multinational or foreign laws or otherwise, including,
without limitation, copyrights, copyright licenses, patents, patent licenses,
trademarks, trademark licenses, technology, know-how and processes, and all
rights to xxx at law or in equity for any infringement or other impairment
thereof, including the right to receive all proceeds and damages therefrom.
"Interest Payment Date": as to any Loan, (a) the first Business Day
immediately following the last day of each calendar month to occur while such
Loan is outstanding, (b) the final maturity date of such Loan and (c) the date
of any repayment or prepayment made in respect of such Loan (other than in the
case of any Revolving Credit Loan that is a Base Rate Loan and any Swing Line
Loan).
"Interest Period": as to any Eurodollar Loan, (a) initially, the
period commencing on the borrowing or conversion date, as the case may be, with
respect to such Eurodollar Loan and ending one, two, three or six months
thereafter, as selected by the relevant Borrower in its notice of borrowing or
notice of conversion, as the case may be, given with respect thereto; and (b)
thereafter, each period commencing on the last day of the immediately preceding
Interest Period applicable to such Eurodollar Loan and ending one, two, three or
six months thereafter, as selected by the relevant Borrower by irrevocable
notice to the Administrative Agent not later than 11:00 A.M., New York City
time, on the date that is at least three Business Days prior to the last day of
the then current Interest Period with
16
respect thereto; provided that, all of the foregoing provisions relating to
Interest Periods are subject to the following:
(1) if any Interest Period would otherwise end on a day that is not
a Business Day, such Interest Period shall be extended to the next
succeeding Business Day unless the result of such extension would be
to carry such Interest Period into another calendar month in which
event such Interest Period shall end on the immediately preceding
Business Day;
(2) any Interest Period that would otherwise extend beyond the
Revolving Credit Termination Date or beyond the date final payment
is due on the CMBS Bridge Loans, the Tranche A Term Loans or the
Tranche B Term Loans, as the case may be, shall end on the Revolving
Credit Termination Date or such due date, as applicable; and
(3) any Interest Period that begins on the last Business Day of a
calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest
Period) shall end on the last Business Day of the calendar month at
the end of such Interest Period.
"Investment Grade": (i) with respect to Fitch, a Credit Rating of
BBB- or higher, (ii) with respect to Xxxxx'x, a Credit Rating of Baa3 or higher
and (iii) with respect to S&P, a Credit Rating of BBB- or higher.
"Investments": as defined in Section 7.7.
"Issuing Lender": Wachovia Bank, National Association.
"Ivanhoe Portfolio": the portfolio of GGP Properties commonly
described by the Partnership as GGP Ivanhoe, GGP Ivanhoe II and GGP Ivanhoe IV,
and their respective Subsidiaries and Investments.
"L/C Commitment": $50,000,000.
"L/C Fee Payment Date": the last day of each March, June, September
and December and the last day of the Revolving Credit Commitment Period.
"L/C Obligations": at any time, an amount equal to the sum of (a)
the aggregate then undrawn and unexpired amount of the then outstanding Letters
of Credit and (b) the aggregate amount of drawings under Letters of Credit that
have not then been reimbursed pursuant to Section 3.5.
"L/C Participants": with respect to any Letter of Credit, the
collective reference to all the Revolving Credit Lenders other than the Issuing
Lender that issued such letter of Credit.
"Lease": a lease, license, concession agreement or other agreement
providing for the use or occupancy of any portion of any Property, including all
amendments, supplements, modifications and assignments thereof and all side
letters or side agreements relating thereto.
"Lender Addendum": with respect to any initial Lender, a Lender
Addendum, substantially in the form of Exhibit I, to be executed and delivered
by such Lender on the Closing Date as provided in Section 10.17.
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"Lenders": as defined in the preamble hereto.
"Letters of Credit": as defined in Section 3.1(a).
"Leverage Ratio": on any date, the ratio, expressed as a percentage,
of (a) Total Adjusted Outstanding Indebtedness on such date to (b) the
Capitalization Value on such date.
"Lien": any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), Environmental Lien, charge
or other security interest or any preference, priority or other security
agreement of any kind or nature whatsoever in respect of the property of a
Person (including, without limitation, any conditional sale or other title
retention agreement and any Capital Lease having substantially the same economic
effect as any of the foregoing).
"Limited Minority Holdings": Minority Holdings in which (i) Holdings
or any Consolidated Entity has a less than 50% ownership interest or (ii)
Holdings or any Consolidated Entity does not control the management of such
Minority Holdings, whether as the general partner or managing member of such
Minority Holding, or otherwise or (iii) Holdings or any Consolidated Entity does
not control decisions with respect to the financing or sale or other disposition
of the assets thereof. As used in this definition only, the term "control" shall
mean the authority to make major management decisions or the management of
day-to-day operations of such entity and shall include instances in which the
Management Company manages the day-to-day leasing, management, control or
development of the GGP Properties of such Minority Holding pursuant to the terms
of a management agreement.
"Loan": any loan made by any Lender pursuant to this Agreement.
"Loan Documents": this Agreement, the Security Documents, the
Applications, the Notes and the Syndication Letter.
"Loan Parties": Holdings, each Borrower and each other Group Member
that is a party to a Loan Document.
"Majority Facility Lenders": with respect to any Facility, the
holders of more than 50% of the aggregate unpaid principal amount of the Term
Loans or the Total Revolving Extensions of Credit, as the case may be,
outstanding under such Facility (or, in the case of the Revolving Credit
Facility, prior to any termination of the Revolving Credit Commitments, the
holders of more than 50% of the Total Revolving Credit Commitments).
"Majority Revolving Credit Facility Lenders": the Majority Facility
Lenders in respect of the Revolving Credit Facility.
"Management Company": General Growth Management, Inc., a Delaware
corporation, and its Subsidiaries, and any of its successors and assigns that
are Subsidiaries of Holdings.
"Mandatory Prepayment Event": (a) any issuance or sale of Capital
Stock, (b) any incurrence of Indebtedness, including any Secured Mortgage
Indebtedness or any refinancing thereof (other than Excluded Indebtedness), and
(c) any Asset Sale, Purchase Price Refund or Recovery Event.
"Material Adverse Effect": a material adverse effect on (a) the
Merger, (b) the business, assets, property, condition (financial or otherwise)
or prospects of the Group Members taken as a whole or (c) the validity or
enforceability of any of the Loan Documents or the rights and remedies of the
Administrative Agent and the Lenders hereunder and thereunder; provided,
however, that solely on the
18
Closing Date and with respect to the representations and warranties to be made
by the Loan Parties on the Closing Date and the Closing Certificates to be
delivered pursuant to Section 5.1(l), "Material Adverse Effect" shall mean: (a)
the occurrence of any change or effect that has been or would be materially
adverse to the business, financial condition or results of operations of the
Target and its Subsidiaries taken as a whole or any change or effect that would
prevent, materially delay or impair the ability of the Target to consummate the
Merger and the transactions contemplated by the Merger Agreement other than (I)
except as provided in (b) below, any change or effect resulting from (i) changes
in general international, national or regional economic or financial conditions,
or changes in the securities market in general, or (ii) changes in any laws or
regulations or accounting regulations or principles applicable to the Target and
its Subsidiaries and (II) except as provided in (c) below, general changes or
developments in the industries in which the Group Members operate; (b) the
occurrence of any of the following events: (i) a declaration of a banking
moratorium or any suspension of payments in respect of banks in the United
States (whether or not mandatory), (ii) any act of war or terrorism or another
material event resulting in a major dislocation of financial markets that
materially and adversely affects the ability of financial institutions in the
United States to extend credit or syndicate loans or (iii) any mandatory
limitation by any governmental authority on the extension of credit generally by
banks or other financial institutions; or (c) the occurrence of any act of war
or terrorism that materially and adversely affects the United States retail
shopping mall business taken as a whole.
"Materials of Environmental Concern": any gasoline or petroleum
(including crude oil or any fraction thereof) or petroleum products,
polychlorinated biphenyls, urea-formaldehyde insulation, asbestos, pollutants,
Contaminants, radioactivity, and any other substances or forces of any kind,
whether or not any such substance or force is defined as hazardous or toxic
under any Environmental Law, that is regulated pursuant to or could reasonably
be expected to give rise to liability under any Environmental Law.
"Merger": as defined in the recitals hereto.
"Merger Agreement": as defined in the recitals hereto.
"Merger Documentation": collectively, the Merger Agreement and all
schedules, exhibits, annexes and amendments thereto and all side letters and
agreements affecting the terms thereof or entered into in connection therewith,
in each case, as amended, supplemented or otherwise modified from time to time.
"Minority Holdings": partnerships, joint ventures, trusts, limited
liability companies and corporations held or owned by Holdings, any Consolidated
Entity or the Management Company, which are not wholly owned by Holdings, any
Consolidated Entity or the Management Company.
"Moody's": Xxxxx'x Investor Services, Inc.
"Multiemployer Plan": a defined benefit pension plan that is a
multiemployer plan as defined in Section 4001(a)(3) of ERISA.
"Net Cash Proceeds": (a) in connection with any Asset Sale or any
Recovery Event, the proceeds thereof in the form of cash and Cash Equivalents
(including any such proceeds received by way of deferred payment of principal
pursuant to a note or installment receivable or purchase price adjustment
receivable or otherwise, but only as and when received) of such Asset Sale or
any Recovery Event, net of attorneys' fees, accountants' fees, investment
banking fees, amounts required to be applied to the repayment of Indebtedness
secured by a Lien expressly permitted hereunder on any asset which is the
subject of such Asset Sale or any Recovery Event (other than any Lien pursuant
to a Security Document)
19
and other customary fees and expenses actually incurred in connection therewith
and net of taxes paid or reasonably estimated to be payable as a result thereof
(after taking into account any available tax credits or deductions and any tax
sharing arrangements), (b) in connection with any issuance or sale of equity
securities or debt securities or instruments or the incurrence of loans
(including any Secured Mortgage Indebtedness), the cash proceeds received from
such issuance or incurrence, net of attorneys' fees, investment banking fees,
accountants' fees, underwriting discounts and commissions and other customary
fees and expenses actually incurred in connection therewith and (c) in
connection with any Purchase Price Refund, the cash amount thereof, net of any
expenses incurred in the collection thereof.
"New Acquisitions": all GGP Properties which are acquired by a
Consolidated Entity or a Minority Holding after the Closing Date and which have
been owned by a Consolidated Entity or a Minority Holding (as applicable) for
less than four fiscal quarters. Notwithstanding the foregoing, if the aggregate
of the amounts set forth in clauses (d) and (e) of the definition of
Capitalization Value would exceed 20% of Capitalization Value (as calculated
prior to the application of this sentence), then there shall be excluded from
New Acquisitions GGP Properties with a cost basis sufficient so that no more
than 20% of Capitalization Value will consist of the amounts set forth in
clauses (d) and (e) of such definition. The GGP Properties to be excluded from
New Acquisitions shall be as determined by Holdings in its sole discretion (as
shall be shown on the schedules to each Compliance Certificate delivered
pursuant to Section 6.2(b)) and, in the absence of such determination by
Holdings, the GGP Properties to be excluded shall be as determined by the
Administrative Agent in its sole discretion. As a result of such excluded GGP
Properties ceasing to constitute "New Acquisitions", such GGP Properties would
be included in clauses (a) and (b) of the definition of Capitalization Value.
"Non-Excluded Taxes": as defined in Section 2.20(a).
"Non-Recourse Indebtedness": Indebtedness which is not Recourse
Indebtedness.
"Non-U.S. Lender": as defined in Section 2.20(d).
"Note": any Term Note, Revolving Credit Note or Swing Line Note.
"Obligations": the unpaid principal of and interest on (including,
without limitation, interest accruing after the maturity of the Loans and
Reimbursement Obligations and interest accruing after the filing of any petition
in bankruptcy, or the commencement of any insolvency, reorganization or like
proceeding, relating to any Borrower, whether or not a claim for post-filing or
post-petition interest is allowed in such proceeding) the Loans, the
Reimbursement Obligations and all other obligations and liabilities of each
Borrower to the Administrative Agent or to any Lender or any Qualified
Counterparty, whether direct or indirect, absolute or contingent, due or to
become due, or now existing or hereafter incurred, which may arise under, out
of, or in connection with, this Agreement, any other Loan Document, the Letters
of Credit, any Specified Hedge Agreement or any other document made, delivered
or given in connection herewith or therewith, whether on account of principal,
interest, reimbursement obligations, fees, indemnities, costs, expenses
(including, without limitation, all fees, charges and disbursements of counsel
to the Administrative Agent or to any Lender that are required to be paid by any
Borrower pursuant hereto) or otherwise; provided, that (i) obligations of any
Borrower or any Subsidiary under any Specified Hedge Agreement shall be secured
and guaranteed pursuant to the Security Documents only to the extent that, and
for so long as, the other Obligations are so secured and guaranteed and (ii) any
release of Collateral or Guarantors effected in the manner permitted by this
Agreement shall not require the consent of holders of obligations under
Specified Hedge Agreements.
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"OSHA": the Occupational Safety and Health Act of 1970, 29 U.S.C.
Sections 651 et seq., any amendments thereto, any successor statutes and any
regulations or guidance having the force of law promulgated thereunder.
"Other Taxes": any and all present or future stamp or documentary
taxes or any other excise or property taxes, charges or similar levies arising
from any payment made hereunder or from the execution, delivery or enforcement
of, or otherwise with respect to, this Agreement or any other Loan Document.
"Participant": as defined in Section 10.6(b).
"Partnership": as defined in the preamble hereto.
"Payment Office": the office specified from time to time by the
Administrative Agent as its payment office by notice to the Borrowers and the
Lenders.
"PBGC": the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA (or any successor).
"Permits": any permit, consent, approval, authorization, license,
variance, or permission required from any Person or any Governmental Authority.
"Person": an individual, partnership, corporation, limited liability
company, business trust, joint stock company, trust, unincorporated association,
joint venture, Governmental Authority or other entity of whatever nature.
"Plan": at a particular time, any employee benefit plan that is
covered by ERISA and in respect of which the relevant Borrower or a Commonly
Controlled Entity is (or, if such plan were terminated at such time, would under
Section 4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5)
of ERISA.
"Pledged Equity": as defined in the Guarantee and Pledge Agreement.
"Prepayment Option Notice": as defined in Section 2.18(d)(i).
"Pricing Grid": the pricing grid attached hereto as Annex A.
"Pro Forma Balance Sheet": as defined in Section 4.1(a).
"Property": any right or interest in or to property of any kind
whatsoever, whether real, personal or mixed and whether tangible or intangible,
including, without limitation, Capital Stock.
"Purchase Price Refund": any amount received by any Group Member as
a result of a purchase price adjustment or similar event in connection with a
given acquisition of Property by such Group Member which, as to such Property,
yields net proceeds to such Group Member in excess of $1,000,000.
"Qualified Counterparty": with respect to any Specified Hedge
Agreement, any counterparty thereto that, at the time such Specified Hedge
Agreement was entered into, was a Lender or an affiliate of a Lender.
21
"RCRA": the Resource Conservation and Recovery Act of 1976, 42
U.S.C. Sections 6901 et seq., any amendments thereto, any successor statutes,
and any regulations or guidance having the force of law promulgated thereunder.
"Real Estate Under Construction": Real Property on which
construction of material improvements has commenced and is continuing to be
performed, but has not yet been completed (as such completion shall be evidenced
by such Real Property being opened for business to the general public).
"Real Property": with respect to any Subsidiary of Holdings, all of
its present and future right, title and interest (including, without limitation,
any leasehold estate) in (a) any plots, pieces or parcels of land, (b) any
Improvements of every nature whatsoever (the rights and interests described in
clauses (a) above and this clause (b) being the "Premises"), (c) all easements,
rights of way, gores of land or any lands occupied by streets, ways, alleys,
passages, sewer rights, water courses, water rights and powers, and public
places adjoining such land, and any other interests in property constituting
appurtenances to the Premises, or which hereafter shall in any way belong,
relate or be appurtenant thereto, (d) all hereditaments, gas, oil, minerals
(with the right to extract, sever and remove such gas, oil and minerals), and
easements, of every nature whatsoever, located in, on or benefiting the Premises
and (e) all other rights and privileges thereunto belonging or appertaining and
all extensions, additions, improvements, betterments, renewals, substitutions
and replacements to or of any of the rights and interests described in clauses
(c) and (d) above.
"Recourse Indebtedness": any Indebtedness, to the extent that
recourse of the applicable lender for non-payment is not limited to such
lender's Liens on a particular asset or group of assets (except to the extent
the property on which such lender has a Lien and to which its recourse for
non-payment is limited constitutes cash or Cash Equivalents, to which extent
such Indebtedness shall be deemed to be Recourse Indebtedness).
"Recourse Secured Mortgage Indebtedness": any Secured Mortgage
Indebtedness (including Construction Related Indebtedness) that is Recourse
Indebtedness.
"Recovery Event": any settlement of or payment in respect of any
property or casualty insurance claim or any condemnation proceeding relating to
any asset of any Group Member.
"Refinancing Indebtedness": (a) with respect to any refinancing of
Secured Mortgage Indebtedness, additional Secured Mortgage Indebtedness, (b)
with respect to any refinancing of unsecured Indebtedness, additional unsecured
Indebtedness and (c) with respect to any refinancing of Indebtedness at its
stated maturity date, any Indebtedness.
"Refunded Swing Line Loans": as defined in Section 2.7.
"Refunding Date": as defined in Section 2.7.
"Register": as defined in Section 10.6(d).
"Regulation U": Regulation U of the Board as in effect from time to
time.
"Reimbursement Obligation": the obligation of the relevant Borrower
to reimburse the Issuing Lender pursuant to Section 3.5 for amounts drawn under
Letters of Credit.
22
"Reinvestment Deferred Amount": with respect to any Reinvestment
Event, the aggregate Net Cash Proceeds received by any Group Member in
connection therewith that are not applied to prepay the Term Loans pursuant to
Section 2.12(c) as a result of the delivery of a Reinvestment Notice.
"Reinvestment Event": any Mandatory Prepayment Event in respect of
which Holdings has delivered a Reinvestment Notice.
"Reinvestment Notice": a written notice executed by a Responsible
Officer stating that no Event of Default has occurred and is continuing and that
Holdings (directly or indirectly through a Subsidiary) intends and expects to
use all or a specified portion of the Net Cash Proceeds of a Mandatory
Prepayment Event to acquire or repair assets useful in its business or to redeem
the Xxxxxxx Preferred Stock in accordance with Section 7.6(c).
"Reinvestment Prepayment Amount": with respect to any Reinvestment
Event, the Reinvestment Deferred Amount relating thereto less any amount
expended prior to the relevant Reinvestment Prepayment Date to acquire or repair
assets useful in the Holdings' business or to redeem the Xxxxxxx Preferred Stock
in accordance with Section 7.6(c).
"Reinvestment Prepayment Date": with respect to any Reinvestment
Event, the earlier of (a) the date occurring twelve months after such
Reinvestment Event and (b) the date on which Holdings shall have determined not
to, or shall have otherwise ceased to, acquire or repair assets useful in the
Holdings' business or to redeem the Xxxxxxx Preferred Stock in accordance with
Section 7.6(c) with all or any portion of the relevant Reinvestment Deferred
Amount.
"REIT": a domestic trust or corporation that qualifies as a real
estate investment trust under the provisions of Sections 856, et seq. of the
Code.
"Related Fund": with respect to any Lender, any fund that (a)
invests in commercial loans and (b) is managed or advised by the same investment
advisor as such Lender (or an Affiliate of such investment advisor), by such
Lender or an Affiliate of such Lender.
"Release": any release, spill, emission, leaking, pumping, pouring,
dumping, injection, deposit, disposal, abandonment, or discarding of barrels,
containers or other receptacles, discharge, emptying, escape, dispersal,
leaching or migration into the indoor or outdoor environment or into or out of
any GGP Property, including the movement of Contaminants through or in the air,
soil, surface water, groundwater or GGP Property.
"Remedial Action": actions required under any Environmental Law to
(a) clean up, remove, treat or in any other way address Contaminants in the
indoor or outdoor environment, (b) prevent the Release or threat of Release or
minimize the further Release of Contaminants, (c) investigate and determine if a
remedial response is needed and to design such a response and post-remedial
investigation, monitoring, operation and maintenance and care or (d) cure or
prevent any violation of any Environmental Law.
"Reorganization": with respect to any Multiemployer Plan, the
condition that such plan is in reorganization within the meaning of Section 4241
of ERISA.
"Reportable Event": any of the events set forth in Section 4043(c)
of ERISA, other than those events as to which the thirty day notice is waived
under PBGC Reg. Section 4043.
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"Required Lenders": at any time, the holders of more than 50% of (a)
until the Closing Date, the Commitments and (b) thereafter, the sum of (i) the
aggregate unpaid principal amount of the Term Loans then outstanding and (ii)
the Total Revolving Credit Commitments then in effect or, if the Revolving
Credit Commitments have been terminated, the Total Revolving Extensions of
Credit then outstanding.
"Required Prepayment Lenders": the Majority Facility Lenders in
respect of each Facility (other than the Revolving Credit Facility).
"Requirement of Law": as to any Person, the Certificate of
Incorporation and By-Laws or other organizational or governing documents of such
Person, and any law, treaty, rule or regulation or determination of an
arbitrator of competent authority and jurisdiction or a court of competent
authority and jurisdiction or other Governmental Authority, in each case
applicable to or binding upon such Person or any of its Property or to which
such Person or any of its Property is subject.
"Responsible Officer": the chief executive officer, president or
chief financial officer of Holdings, but in any event, with respect to financial
matters, the chief financial officer of Holdings.
"Restricted Payments": as defined in Section 7.6(a).
"Revolving Credit Commitment": as to any Lender, the obligation of
such Lender, if any, to make Revolving Credit Loans and participate in Swing
Line Loans and Letters of Credit, in an aggregate principal and/or face amount
not to exceed the amount set forth under the heading "Revolving Credit
Commitment" opposite such Lender's name on Schedule 1 to the Lender Addendum
delivered by such Lender, or, as the case may be, in the Assignment and
Acceptance pursuant to which such Lender became a party hereto, as the same may
be changed from time to time pursuant to the terms hereof. The original
aggregate amount of the Total Revolving Credit Commitments is $500,000,000.
"Revolving Credit Commitment Period": the period from and including
the Closing Date to the Revolving Credit Termination Date.
"Revolving Credit Facility": as defined in the definition of
"Facility" in this Section 1.1.
"Revolving Credit Lender": each Lender that has a Revolving Credit
Commitment or that is the holder of Revolving Credit Loans.
"Revolving Credit Loans": as defined in Section 2.4.
"Revolving Credit Note": as defined in Section 2.8.
"Revolving Credit Percentage": as to any Revolving Credit Lender at
any time, the percentage which such Lender's Revolving Credit Commitment then
constitutes of the Total Revolving Credit Commitments (or, at any time after the
Revolving Credit Commitments shall have expired or terminated, the percentage
which the aggregate amount of such Lender's Revolving Extensions of Credit then
outstanding constitutes of the Total Revolving Extensions of Credit then
outstanding).
"Revolving Credit Termination Date": November 12, 2007.
"Revolving Extensions of Credit": as to any Revolving Credit Lender
at any time, an amount equal to the sum of (a) the aggregate principal amount of
all Revolving Credit Loans made by such Lender then outstanding, (b) such
Lender's Revolving Credit Percentage of the L/C Obligations then
24
outstanding and (c) such Lender's Revolving Credit Percentage of the aggregate
principal amount of Swing Line Loans then outstanding.
"Xxxxx LLC": Xxxxx LLC, a Delaware limited liability company.
"S&P": Standard & Poor's Ratings Services.
"SEC": the Securities and Exchange Commission (or successors
thereto).
"Secured Mortgage Indebtedness": any Indebtedness secured by a
mortgage on any Real Property.
"Security Documents": the collective reference to the Guarantee and
Pledge Agreement, the Control Agreement and all other security documents
hereafter delivered to the Administrative Agent granting a Lien on any Property
of any Person to secure the obligations and liabilities of any Loan Party under
any Loan Document.
"Single Employer Plan": any Plan that is covered by Title IV of
ERISA, but which is not a Multiemployer Plan.
"Solvent": with respect to any Person, as of any date of
determination, (a) the amount of the "present fair saleable value" of the assets
of such Person will, as of such date, exceed the amount of all "liabilities of
such Person, contingent or otherwise", as of such date, as such quoted terms are
determined in accordance with applicable federal and state laws governing
determinations of the insolvency of debtors, (b) the present fair saleable value
of the assets of such Person will, as of such date, be greater than the probable
amount that will be required to pay the liability of such Person on its debts as
such debts become absolute and matured, (c) such Person will not have, as of
such date, an unreasonably small amount of capital with which to conduct its
business, and (d) such Person is then able and expects to be able to pay its
debts as they mature. For purposes of this definition, (i) "debt" means
liability on a "claim", and (ii) "claim" means any (x) right to payment, whether
or not such a right is reduced to judgment, liquidated, unliquidated, fixed,
contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured
or unsecured or (y) right to an equitable remedy for breach of performance if
such breach gives rise to a right to payment, whether or not such right to an
equitable remedy is reduced to judgment, fixed, contingent, matured or
unmatured, disputed, undisputed, secured or unsecured.
"Specified Change of Control": a "Change of Control"(or any other
defined term having a similar purpose), as defined in the Existing Debt
Instruments.
"Specified Hedge Agreement": any Hedge Agreement entered into by any
Group Member and any Qualified Counterparty.
"Subordinated Debt": any Indebtedness that is expressly subordinated
to the prior payment of the Obligations in a manner reasonably satisfactory to
the Administrative Agent.
"Subsidiary": as to any Person, a corporation, partnership, limited
liability company or other entity of which shares of stock or other ownership
interests having ordinary voting power (other than stock or such other ownership
interests having such power only by reason of the happening of a contingency) to
elect a majority of the board of directors or other managers of such
corporation, partnership or other entity are at the time owned, or the
management of which is otherwise controlled, directly or indirectly through one
or more intermediaries, or both, by such Person. Unless otherwise
25
qualified, all references to a "Subsidiary" or to "Subsidiaries" in this
Agreement shall refer to a Subsidiary or Subsidiaries of Holdings.
"Swing Line Commitment": the obligation of the Swing Line Lender to
make Swing Line Loans pursuant to Section 2.6 in an aggregate principal amount
at any one time outstanding not to exceed $25,000,000.
"Swing Line Lender": Wachovia Bank, National Association, in its
capacity as the lender of Swing Line Loans.
"Swing Line Loans": as defined in Section 2.6.
"Swing Line Note": as defined in Section 2.8.
"Swing Line Participation Amount": as defined in Section 2.7.
"Syndication Agents": as defined in the preamble hereto.
"Syndication Date": the date on which the Arrangers complete the
syndication of the Facilities and the entities selected in such syndication
process become parties to this Agreement.
"Syndication Letter": the Syndication Letter Agreement, dated the
date hereof, among the Borrowers and the General Administrative Agent.
"Target": The Xxxxx Company, which following the Merger shall become
Xxxxx X.X., a Delaware limited partnership and a Subsidiary of the Partnership.
"Term Loan Facilities": the collective reference to the CMBS Bridge
Loan Facility, the Tranche A Term Loan Facility and the Tranche B Term Loan
Facility.
"Term Loan Lenders": the collective reference to the CMBS Bridge
Loan Lenders, the Tranche A Term Loan Lenders and the Tranche B Term Loan
Lenders.
"Term Loans": the collective reference to the CMBS Bridge Loans, the
Tranche A Term Loans and the Tranche B Term Loans.
"Term Note": as defined in Section 2.8.
"Total Adjusted Outstanding Indebtedness": on any date, the sum,
without duplication, of (a) the amount of Indebtedness of Holdings and the
Consolidated Entities set forth on the then most recent quarterly financial
statements of Holdings, (b) the outstanding amount of Indebtedness of Minority
Holdings allocable to Holdings or any Consolidated Entity as of the time of
determination and (c) the Contingent Obligations of Holdings and the
Consolidated Entities and, to the extent allocable to Holdings or any
Consolidated Entity in accordance with GAAP, of the Minority Holdings; provided,
that solely for purposes of this definition, the term "Indebtedness" shall not
include Indebtedness with respect to letters of credit issued to support
operating income guaranties or other performance guaranty or completion guaranty
obligations or obligations under interest rate swap arrangements; provided,
however, that the exclusion for obligations under interest rate swap
arrangements and for letters of credit issued to support performance guaranty
obligations shall not exceed 1% of Capitalization Value in the aggregate.
26
"Total Revolving Credit Commitments": at any time, the aggregate
amount of the Revolving Credit Commitments then in effect.
"Total Revolving Extensions of Credit": at any time, the aggregate
amount of the Revolving Extensions of Credit of the Revolving Credit Lenders
outstanding at such time.
"Tranche A Term Loan": as defined in Section 2.1(a).
"Tranche A Term Loan Commitment": as to any Lender, the obligation
of such Lender, if any, to make a Tranche A Term Loan to the Borrowers hereunder
in a principal amount not to exceed the amount set forth under the heading
"Tranche A Term Loan Commitment" opposite such Lender's name on Schedule 1 to
the Lender Addendum delivered by such Lender, or, as the case may be, in the
Assignment and Acceptance pursuant to which such Lender became a party hereto,
as the same may be changed from time to time pursuant to the terms hereof. The
original aggregate amount of the Tranche A Term Loan Commitments is
$3,650,000,000.
"Tranche A Term Loan Facility": as defined in the definition of
"Facility" in this Section 1.1.
"Tranche A Term Loan Lender": each Lender that has a Tranche A Term
Loan Commitment or is the holder of a Tranche A Term Loan.
"Tranche A Term Loan Percentage": as to any Tranche A Term Loan
Lender at any time, the percentage which such Lender's Tranche A Term Loan
Commitment then constitutes of the aggregate Tranche A Term Loan Commitments
(or, at any time after the Closing Date, the percentage which the aggregate
principal amount of such Lender's Tranche A Term Loans then outstanding
constitutes of the aggregate principal amount of the Tranche A Term Loans then
outstanding).
"Tranche B Administrative Agent": as defined in the preamble hereto.
"Tranche B Term Loan": as defined in Section 2.1(a).
"Tranche B Term Loan Commitment": as to any Lender, the obligation
of such Lender, if any, to make a Tranche B Term Loan to the Borrowers hereunder
in a principal amount not to exceed the amount set forth under the heading
"Tranche B Term Loan Commitment" opposite such Lender's name on Schedule 1 to
the Lender Addendum delivered by such Lender, or, as the case may be, in the
Assignment and Acceptance pursuant to which such Lender became a party hereto,
as the same may be changed from time to time pursuant to the terms hereof. The
original aggregate amount of the Tranche B Term Loan Commitments is
$2,000,000,000.
"Tranche B Term Loan Facility": as defined in the definition of
"Facility" in this Section 1.1.
"Tranche B Term Loan Lender": each Lender that has a Tranche B Term
Loan Commitment or is the holder of a Tranche B Term Loan.
"Tranche B Term Loan Percentage": as to any Tranche B Term Loan
Lender at any time, the percentage which such Lender's Tranche B Term Loan
Commitment then constitutes of the aggregate Tranche B Term Loan Commitments
(or, at any time after the Closing Date, the percentage which the aggregate
principal amount of such Lender's Tranche B Term Loans then outstanding
constitutes of the aggregate principal amount of the Tranche B Term Loans then
outstanding).
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"Transferee": as defined in Section 10.14.
"Type": as to any Loan, its nature as a Base Rate Loan or a
Eurodollar Loan.
"Wholly Owned Subsidiary": as to any Person, any Subsidiary of such
Person all of the Capital Stock of which (other than directors' qualifying
shares) is owned by such Person directly or indirectly.
1.2 Other Definitional Provisions. (a) Unless otherwise specified
therein, all terms defined in this Agreement shall have the defined meanings
when used in the other Loan Documents or any certificate or other document made
or delivered pursuant hereto or thereto.
(b) As used herein, to the extent not otherwise specified therein,
and in the other Loan Documents, and any certificate or other document made or
delivered pursuant hereto or thereto, accounting terms relating to any Group
Member not defined in Section 1.1 and accounting terms partly defined in Section
1.1, to the extent not defined, shall have the respective meanings given to them
under GAAP.
(c) The words "hereof", "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement, and Section,
Schedule and Exhibit references are to this Agreement unless otherwise
specified.
(d) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
(e) All calculations of financial ratios set forth in Section 7.1
shall be calculated to the same number of decimal places as the relevant ratios
are expressed in and shall be rounded upward if the number in the decimal place
immediately following the last calculated decimal place is five or greater. (For
example, if the relevant ratio is to be calculated to the hundredth decimal
place and the calculation of the ratio is 5.126, the ratio will be rounded up to
5.13.)
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS
2.1 Term Loan Commitments. (a) Subject to the terms and conditions
hereof, (i) the CMBS Bridge Loan Lenders severally agree to make term loans
(each, a "CMBS Bridge Loan") to the Borrowers on the Closing Date in an amount
for each CMBS Bridge Loan Lender not to exceed the amount of the CMBS Bridge
Loan Commitment of such Lender, (ii) the Tranche A Term Loan Lenders severally
agree to make term loans (each, a "Tranche A Term Loan") to the Borrowers on the
Closing Date in an amount for each Tranche A Term Loan Lender not to exceed the
amount of the Tranche A Term Loan Commitment of such Lender and (iii) the
Tranche B Term Loan Lenders severally agree to make term loans (each, a "Tranche
B Term Loan") to the Borrowers on the Closing Date in an amount for each Tranche
B Term Loan Lender not to exceed the amount of the Tranche B Term Loan
Commitment of such Lender. The Term Loans may from time to time be Eurodollar
Loans or Base Rate Loans, as determined by the relevant Borrower and notified to
the Administrative Agent in accordance with Sections 2.2 and 2.13.
(b) Each borrowing of Term Loans shall be made by Holdings, the
Company or the Partnership or simultaneously by any of Holdings, the Company and
the Partnership and shall be the separate obligation of the Borrower making such
borrowing and not of the other Borrowers; provided, however, that pursuant to
the Guarantee and Pledge Agreement, Holdings and the Partnership shall
28
guaranty each other's Obligations and the Obligations of the Company (so that
(1) Holdings and the Partnership shall, as Guarantors, be liable, subject to the
limitations set forth in the Guarantee and Pledge Agreement, for each others'
Obligations and (2) Holdings and the Partnership shall also, as Guarantors, be
liable, subject to the limitations set forth in the Guarantee and Pledge
Agreement, for the Obligations of the Company, but the Company shall not be
liable for the Obligations of Holdings or the Partnership). The Term Loans have
been allocated to and shall be borrowed by each Borrower set forth below on the
Closing Date in the following amounts:
CMBS Bridge Loans Tranche A Term Loans Tranche B Term Loans
----------------- -------------------- --------------------
Holdings $404,173,759.00 $3,650,000,000 $2,000,000,000
Partnership $222,247,872.30 $ 0 $ 0
Company $518,578,368.70 $ 0 $ 0
Notwithstanding anything herein to the contrary, the Partnership shall be
permitted to assume all of the Term Loans made to Holdings on the Closing Date
in a manner reasonably satisfactory to the Administrative Agent.
2.2 Procedure for Term Loan Borrowing. The relevant Borrower shall
deliver to the Administrative Agent a Borrowing Notice (which Borrowing Notice
must be received by the Administrative Agent prior to 10:00 A.M., New York City
time, (a) three Business Days prior to the Closing Date, in the case of
Eurodollar Loans, or (b) one Business Day prior to the Closing Date, in the case
of Base Rate Loans) requesting that the Term Loan Lenders make the Term Loans to
such Borrower on the Closing Date. No Term Loan may be made, converted into or
continued as a Eurodollar Loan having an Interest Period in excess of one month
prior to the Syndication Date. Upon receipt of any such Borrowing Notice the
Administrative Agent shall promptly notify each Term Loan Lender thereof. Not
later than 12:00 Noon, New York City time, on the Closing Date each Term Loan
Lender shall make available to the Administrative Agent at the Funding Office an
amount in immediately available funds equal to the Term Loan or Term Loans to be
made by such Lender. The Administrative Agent shall immediately make available
to the relevant Borrower the aggregate of the amounts made available to the
Administrative Agent by the Term Loan Lenders, in like funds as received by the
Administrative Agent.
2.3 Repayment of Term Loans; Extension of CMBS Maturity Date. (a)
Each Borrower shall repay all outstanding CMBS Bridge Loans borrowed by such
Borrower on the Initial CMBS Bridge Loan Maturity Date. Notwithstanding the
foregoing, any Borrower of a CMBS Bridge Loan may request, in a written notice
provided to the Administrative Agent not less than 30 nor more than 60 days
prior to the Initial CMBS Bridge Loan Maturity Date, that the CMBS Bridge Loans
borrowed by such Borrower and outstanding on the Initial CMBS Bridge Loan
Maturity Date mature on the Extended CMBS Bridge Loan Maturity Date, and the
unpaid principal amount of such CMBS Bridge Loans shall then be due and payable
on the Extended CMBS Bridge Loan Maturity Date; provided that (i) any Borrower
exercising such option shall pay to the Administrative Agent for the account of
the CMBS Bridge Loan Lenders a fee in the amount of 0.25% of the aggregate
principal amount of its CMBS Bridge Loans so extended, which fee shall be
payable on the Initial CMBS Bridge Loan Maturity Date and (ii) the aggregate
principal amount of the CMBS Bridge Loans made to the Borrowers for which the
maturity date can be extended to the Extended CMBS Bridge Loan Maturity Date
shall not collectively exceed $600,000,000. The Administrative Agent shall
promptly notify each relevant CMBS Bridge Loan Lender of any such request.
(b) The Tranche A Term Loans of each Tranche A Term Loan Lender
shall mature in installments, commencing on November 12, 2005, each of which
shall be in an amount equal to such
29
Lender's Tranche A Term Loan Percentage multiplied by the principal amount set
forth below opposite such installment (and each such amount shall be allocated
to, and payable by, each Borrower ratably in accordance with the respective
amounts of the Tranche A Term Loans made to the Borrowers):
Installment Principal Amount
----------- ----------------
November 12, 2005 $ 500,000,000
May 12, 2006 $ 500,000,000
November 12, 2006 $ 500,000,000
February 12, 2007 $ 125,000,000
May 12, 2007 $ 125,000,000
August 12, 2007 $ 125,000,000
November 12, 2007 $1,775,000,000
(c) The Tranche B Term Loans of each Tranche B Term Loan Lender
shall mature in 16 consecutive quarterly installments, commencing on March 31,
2005, each of which shall be in an amount equal to such Lender's Tranche B Term
Loan Percentage multiplied by the principal amount set forth below opposite such
installment (and each such amount shall be allocated to, and payable by, each
Borrower ratably in accordance with the respective amounts of the Tranche B Term
Loans made to the Borrowers):
Installment Principal Amount
----------- ----------------
March 31, 2005 $ 5,000,000
June 30, 2005 $ 5,000,000
September 30, 2005 $ 5,000,000
December 31, 2005 $ 5,000,000
March 31, 2006 $ 5,000,000
June 30, 2006 $ 5,000,000
September 30, 2006 $ 5,000,000
December 31, 2006 $ 5,000,000
March 31, 2007 $ 5,000,000
June 30, 2007 $ 5,000,000
September 30, 2007 $ 5,000,000
December 31, 2007 $ 5,000,000
March 31, 2008 $ 5,000,000
June 30, 2008 $ 5,000,000
September 30, 2008 $ 5,000,000
November 12, 2008 $1,925,000,000
30
(d) Notwithstanding the foregoing, if the aggregate principal amount
of Tranche A Term Loans or Tranche B Term Loans, as the case may be, made on the
Closing Date is less than the aggregate amount of the Tranche A Term Loan
Commitments or the Tranche B Term Loan Commitments, respectively, the amount of
each relevant principal installment set forth in paragraph (b) or (c) above,
respectively, shall be proportionally reduced to reflect such lesser amount so
borrowed.
2.4 Revolving Credit Commitments. (a) Subject to the terms and
conditions hereof, the Revolving Credit Lenders severally agree to make
revolving credit loans ("Revolving Credit Loans") to one or more of the
Borrowers from time to time during the Revolving Credit Commitment Period in an
aggregate principal amount at any one time outstanding for each Revolving Credit
Lender which, when added to such Lender's Revolving Credit Percentage of the sum
of (i) the L/C Obligations then outstanding and (ii) the aggregate principal
amount of the Swing Line Loans then outstanding, does not exceed the amount of
such Lender's Revolving Credit Commitment. During the Revolving Credit
Commitment Period the Borrowers may use the Revolving Credit Commitments by
borrowing, prepaying the Revolving Credit Loans in whole or in part, and
reborrowing, all in accordance with the terms and conditions hereof; provided
that the aggregate amount of Revolving Credit Loans made on the Closing Date
shall not exceed $250,000,000. The Revolving Credit Loans may from time to time
be Eurodollar Loans or Base Rate Loans, as determined by the relevant Borrower
and notified to the Administrative Agent in accordance with Sections 2.5 and
2.13, provided that no Revolving Credit Loan shall be made as a Eurodollar Loan
after the day that is one month prior to the Revolving Credit Termination Date.
(b) On the Revolving Credit Termination Date, each Borrower shall
repay all then outstanding Revolving Credit Loans made to such Borrower.
(c) Each borrowing of Revolving Credit Loans shall be made by
Holdings, the Company or the Partnership or simultaneously by any of Holdings,
the Company and the Partnership and shall be the separate obligation of the
Borrower making such borrowing and not of the other Borrowers; provided,
however, that pursuant to the Guarantee and Pledge Agreement, Holdings and the
Partnership shall guaranty each other's Obligations and the Obligations of the
Company (so that (1) Holdings and the Partnership shall, as Guarantors, be
liable, subject to the limitations set forth in the Guarantee and Pledge
Agreement, for each others' Obligations and (2) Holdings and the Partnership
shall also, as Guarantors, be liable, subject to the limitations set forth in
the Guarantee and Pledge Agreement, for the Obligations of the Company, but the
Company shall not be liable for the Obligations of Holdings or the Partnership).
The Revolving Credit Commitments have been allocated to and shall be available
for usage by each Borrower through borrowings of Revolving Credit Loans and
Swing Line Loans and issuances for the account of such Borrower of Letters of
Credit in accordance with this Agreement in the following maximum amounts:
Holdings $250,000,000
Partnership $ 75,000,000
Company $175,000,000
Revolving Credit Loans need not be borrowed by each Borrower at the same time or
in the same proportions (but the maximum amount that may be borrowed by each
Borrower shall be as set forth above). Notwithstanding anything herein to the
contrary, the Partnership shall be permitted to assume all of the Revolving
Credit Commitments allocated to, and all the Revolving Credit Loans made by,
Holdings in a manner reasonably satisfactory to the Administrative Agent (it
being understood that upon such assumption (i) the Revolving Credit Commitments
allocated to the Partnership shall be increased by
31
the amount so assumed and (ii) Holdings shall cease to have any Revolving Credit
Commitments allocated to it).
2.5 Procedure for Revolving Credit Borrowing. Each Borrower may
borrow under the Revolving Credit Commitments on any Business Day during the
Revolving Credit Commitment Period, provided that the relevant Borrower shall
deliver to the Administrative Agent a Borrowing Notice (which Borrowing Notice
must be received by the Administrative Agent prior to 12:00 Noon, New York City
time, (a) three Business Days prior to the requested Borrowing Date, in the case
of Eurodollar Loans, or (b) one Business Day prior to the requested Borrowing
Date, in the case of Base Rate Loans). No Revolving Credit Loan may be made as,
converted into or continued as a Eurodollar Loan having an Interest Period in
excess of one month prior to the Syndication Date. Each borrowing of Revolving
Credit Loans under the Revolving Credit Commitments shall be in an amount equal
to (x) in the case of Base Rate Loans, $1,000,000 or a whole multiple of
$500,000 in excess thereof (or, if the then aggregate Available Revolving Credit
Commitments are less than $500,000, such lesser amount) and (y) in the case of
Eurodollar Loans, $3,000,000 or a whole multiple of $500,000 in excess thereof;
provided, that the Swing Line Lender may request, on behalf of the relevant
Borrower, borrowings of Base Rate Loans under the Revolving Credit Commitments
in other amounts pursuant to Section 2.7. Upon receipt of any such Borrowing
Notice from any Borrower, the Administrative Agent shall promptly notify each
Revolving Credit Lender thereof. Each Revolving Credit Lender will make its
Revolving Credit Percentage of the amount of each borrowing of Revolving Credit
Loans available to the Administrative Agent for the account of the relevant
Borrower at the Funding Office prior to 12:00 Noon, New York City time, on the
Borrowing Date requested by such Borrower in funds immediately available to the
Administrative Agent. Such borrowing will then be made available promptly to
such Borrower by the Administrative Agent in like funds as received by the
Administrative Agent.
2.6 Swing Line Commitment. (a) Subject to the terms and conditions
hereof, the Swing Line Lender agrees that, during the Revolving Credit
Commitment Period, it will make available to the Borrowers in the form of swing
line loans ("Swing Line Loans") a portion of the credit otherwise available to
the Borrowers under the Revolving Credit Commitments; provided that (i) the
aggregate principal amount of Swing Line Loans outstanding at any time shall not
exceed the Swing Line Commitment then in effect (notwithstanding that the Swing
Line Loans outstanding at any time, when aggregated with the Swing Line Lender's
other outstanding Revolving Credit Loans hereunder, may exceed the Swing Line
Commitment then in effect or such Swing Line Lender's Revolving Credit
Commitment then in effect) and (ii) no Borrower shall request, and the Swing
Line Lender shall not make, any Swing Line Loan if, after giving effect to the
making of such Swing Line Loan, (A) the aggregate amount of the Available
Revolving Credit Commitments would be less than zero or (B) the aggregate amount
of the Revolving Extensions of Credit owing by such Borrower would exceed the
limit applicable to such Borrower set forth in Section 2.4(c). During the
Revolving Credit Commitment Period, the Borrowers may use the Swing Line
Commitment by borrowing, repaying and reborrowing, all in accordance with the
terms and conditions hereof. Swing Line Loans shall be Base Rate Loans only.
(b) On the Revolving Credit Termination Date, each Borrower shall
repay all then outstanding Swing Line Loans made to such Borrower.
2.7 Procedure for Swing Line Borrowing; Refunding of Swing Line
Loans. (a) Any Borrower may borrow under the Swing Line Commitment on any
Business Day during the Revolving Credit Commitment Period, provided, the
relevant Borrower shall give the Swing Line Lender irrevocable telephonic notice
confirmed promptly in writing (which telephonic notice must be received by the
Swing Line Lender not later than 1:00 P.M., New York City time, on the proposed
Borrowing Date), specifying (i) the amount to be borrowed and (ii) the requested
Borrowing Date. Each borrowing under the Swing Line Commitment shall be in an
amount equal to $100,000 or a whole multiple of $25,000 in excess
32
thereof. Not later than 3:00 P.M., New York City time, on the Borrowing Date
specified in the borrowing notice in respect of any Swing Line Loan, the Swing
Line Lender shall make available to the Administrative Agent at the Funding
Office an amount in immediately available funds equal to the amount of such
Swing Line Loan. The Administrative Agent shall make the proceeds of such Swing
Line Loan available promptly to such Borrower on such Borrowing Date in like
funds as received by the Administrative Agent. Each Borrower agrees to repay any
Swing Line Loan made to it within one Business Day of demand therefor by the
Swing Line Lender and, in any event, within 5 Business Days after the date such
Swing Line Loan was made.
(b) The Swing Line Lender, at any time and from time to time in its
sole and absolute discretion may, on behalf of the relevant Borrower (which
hereby irrevocably directs the Swing Line Lender to act on its behalf), on one
Business Day's notice given by the Swing Line Lender no later than 12:00 Noon,
New York City time, request each Revolving Credit Lender to make, and each
Revolving Credit Lender hereby agrees to make, a Revolving Credit Loan (which
shall initially be a Base Rate Loan), in an amount equal to such Revolving
Credit Lender's Revolving Credit Percentage of the aggregate amount of the Swing
Line Loans (the "Refunded Swing Line Loans") outstanding on the date of such
notice, to repay the Swing Line Lender. Each Revolving Credit Lender shall make
the amount of such Revolving Credit Loan available to the Administrative Agent
at the Funding Office in immediately available funds, not later than 12:00 Noon,
New York City time, one Business Day after the date of such notice. The proceeds
of such Revolving Credit Loans shall be made immediately available by the
Administrative Agent to the Swing Line Lender for application by the Swing Line
Lender to the repayment of the Refunded Swing Line Loans.
(c) If prior to the time a Revolving Credit Loan would have
otherwise been made pursuant to Section 2.7(b), one of the events described in
Section 8(f) shall have occurred and be continuing with respect to any Borrower,
or if for any other reason, as determined by the Swing Line Lender in its sole
discretion, Revolving Credit Loans may not be made as contemplated by Section
2.7(b), each Revolving Credit Lender shall, on the date such Revolving Credit
Loan was to have been made pursuant to the notice referred to in Section 2.7(b)
(the "Refunding Date"), purchase for cash an undivided participating interest in
the then outstanding Swing Line Loans by paying to the Swing Line Lender an
amount (the "Swing Line Participation Amount") equal to (i) such Revolving
Credit Lender's Revolving Credit Percentage times (ii) the sum of the aggregate
principal amount of Swing Line Loans then outstanding which were to have been
repaid with such Revolving Credit Loans.
(d) Whenever, at any time after the Swing Line Lender has received
from any Revolving Credit Lender such Lender's Swing Line Participation Amount,
the Swing Line Lender receives any payment on account of the Swing Line Loans,
the Swing Line Lender will distribute to such Lender its Swing Line
Participation Amount (appropriately adjusted, in the case of interest payments,
to reflect the period of time during which such Lender's participating interest
was outstanding and funded and, in the case of principal and interest payments,
to reflect such Lender's pro rata portion of such payment if such payment is not
sufficient to pay the principal of and interest on all Swing Line Loans then
due); provided, however, that in the event that such payment received by the
Swing Line Lender is required to be returned, such Revolving Credit Lender will
return to the Swing Line Lender any portion thereof previously distributed to it
by the Swing Line Lender.
(e) Each Revolving Credit Lender's obligation to make the Loans
referred to in Section 2.7(b) and to purchase participating interests pursuant
to Section 2.7(c) shall be absolute and unconditional and shall not be affected
by any circumstance, including, without limitation, (i) any setoff,
counterclaim, recoupment, defense or other right which such Revolving Credit
Lender or any Borrower may have against the Swing Line Lender, any Borrower or
any other Person for any reason whatsoever; (ii) the occurrence or continuance
of a Default or an Event of Default or the failure to satisfy any of the
33
other conditions specified in Section 5; (iii) any adverse change in the
condition (financial or otherwise) of any Borrower; (iv) any breach of this
Agreement or any other Loan Document by any Borrower, any other Loan Party or
any other Revolving Credit Lender; or (v) any other circumstance, happening or
event whatsoever, whether or not similar to any of the foregoing.
2.8 Repayment of Loans; Evidence of Debt. (a) Each Borrower hereby
unconditionally promises to pay to the Administrative Agent for the account of
the appropriate Revolving Credit Lender or Term Loan Lender or the Swing Line
Lender, as the case may be, (i) the then unpaid principal amount of each
Revolving Credit Loan made by such Revolving Credit Lender to such Borrower on
the Revolving Credit Termination Date (or on such earlier date on which the
Loans become due and payable pursuant to Section 8), (ii) the then unpaid
principal amount of each Swing Line Loan made by the Swing Line Lender to such
Borrower on the Revolving Credit Termination Date (or on such earlier date on
which the Loans become due and payable pursuant to Section 8) and (iii) the
principal amount of each Term Loan made by such Term Loan Lender to such
Borrower (x) in the case of the CMBS Bridge Loans, on the Initial CMBS Bridge
Loan Maturity Date or the Extended CMBS Bridge Loan Maturity Date, as
applicable, or (y) in the case of the other Term Loans, in installments
according to the amortization schedule set forth in Section 2.3 (or, in each
case, on such earlier date on which the Loans become due and payable pursuant to
Section 8). Each Borrower hereby further agrees to pay interest on the unpaid
principal amount of the Loans made to it from time to time outstanding from the
date hereof until payment in full thereof at the rates per annum, and on the
dates, set forth in Section 2.15.
(b) Each Lender shall maintain in accordance with its usual practice
an account or accounts evidencing indebtedness of the Borrowers to such Lender
resulting from each Loan of such Lender from time to time, including the amounts
of principal and interest payable and paid to such Lender from time to time
under this Agreement.
(c) The Administrative Agent, on behalf of the Borrowers, shall
maintain the Register pursuant to Section 10.6(d), and a subaccount therein for
each Lender, in which shall be recorded (i) the amount of each Loan made
hereunder and any Note evidencing such Loan, the Type of such Loan and each
Interest Period applicable thereto, (ii) the amount of any principal or interest
due and payable or to become due and payable from each Borrower to each Lender
hereunder and (iii) both the amount of any sum received by the Administrative
Agent hereunder from each Borrower and each Lender's share thereof.
(d) The entries made in the Register and the accounts of each Lender
maintained pursuant to Section 2.8(b) shall, to the extent permitted by
applicable law and absent manifest error, be prima facie evidence of the
existence and amounts of the obligations of the Borrowers therein recorded;
provided, however, that the failure of any Lender or the Administrative Agent to
maintain the Register or any such account, or any error therein, shall not in
any manner affect the obligation of any Borrower to repay (with applicable
interest) the Loans made to such Borrower by such Lender in accordance with the
terms of this Agreement.
(e) Each Borrower agrees that, upon the request to the
Administrative Agent by any Lender, such Borrower will promptly execute and
deliver to such Lender a Note of such Borrower evidencing any Term Loans,
Revolving Credit Loans or Swing Line Loans, as the case may be, of such Lender
owed by such Borrower, substantially in the forms of Exhibit F-1, F-2 or F-3,
respectively (a "Term Note", "Revolving Credit Note" or "Swing Line Note",
respectively), with appropriate insertions as to date and principal amount;
provided, that delivery of Notes shall not be a condition precedent to the
occurrence of the Closing Date or the making of the Loans or issuance of Letters
of Credit on the Closing Date.
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2.9 Commitment Fees, etc. (a) Each Borrower agrees to pay to the
Administrative Agent for the account of each Revolving Credit Lender a
commitment fee for the period from and including the Closing Date to the last
day of the Revolving Credit Commitment Period, computed at the Commitment Fee
Rate on the average daily amount of the Available Revolving Credit Commitment of
such Lender made available to such Borrower hereunder during the period for
which payment is made, payable quarterly in arrears on the first Business Day
immediately following the last day of each March, June, September and December
and on the Revolving Credit Termination Date, commencing on the first of such
dates to occur after the date hereof.
(b) Holdings shall pay to, or cause to be paid to, the Arrangers (or
their Affiliates) the fees in the amounts and on the dates that Holdings and the
Arrangers have previously agreed in writing.
(c) Holdings shall pay to, or cause to be paid to, the
Administrative Agent the fees in the amounts and on the dates that Holdings and
the Administrative Agent have previously agreed in writing.
2.10 Termination or Reduction of Revolving Credit Commitments. Each
Borrower shall have the right, upon not less than three Business Days' notice to
the Administrative Agent, to terminate the Revolving Credit Commitments made
available to such Borrower hereunder or, from time to time, to reduce the
aggregate amount of the Revolving Credit Commitments made available to such
Borrower hereunder; provided that no such termination or reduction of Revolving
Credit Commitments shall be permitted if, after giving effect thereto and to any
prepayments of the Revolving Credit Loans and Swing Line Loans made on the
effective date thereof, the Total Revolving Extensions of Credit would exceed
the Total Revolving Credit Commitments. Any such reduction shall be in an amount
equal to $1,000,000, or a whole multiple thereof, and shall reduce permanently
the Revolving Credit Commitments made available to such Borrower hereunder then
in effect.
2.11 Optional Prepayments. Each Borrower may at any time and from
time to time prepay the Loans made to such Borrower, in whole or in part,
without premium or penalty (except as otherwise provided herein), upon
irrevocable notice delivered to the Administrative Agent no later than 11:00
A.M., New York City time, three Business Days prior thereto in the case of
Eurodollar Loans and no later than 11:00 A.M., New York City time, one Business
Day prior thereto in the case of Base Rate Loans, which notice shall specify the
date and amount of such prepayment, whether such prepayment is of Term Loans or
Revolving Credit Loans, and whether such prepayment is of Eurodollar Loans or
Base Rate Loans; provided, that (i) if a Eurodollar Loan is prepaid on any day
other than the last day of the Interest Period applicable thereto, the relevant
Borrower shall also pay any amounts owing pursuant to Section 2.21 and (ii) no
prior notice is required for the prepayment of Swing Line Loans. Upon receipt of
any such notice the Administrative Agent shall promptly notify each relevant
Lender thereof. If any such notice is given, the amount specified in such notice
shall be due and payable on the date specified therein, together with (except in
the case of Revolving Credit Loans that are Base Rate Loans and Swing Line
Loans) accrued interest to such date on the amount prepaid. Partial prepayments
of Term Loans and Revolving Credit Loans shall be in an aggregate principal
amount of $1,000,000 or a whole multiple thereof. Partial prepayments of Swing
Line Loans shall be in an aggregate principal amount of $100,000 or a whole
multiple thereof.
2.12 Mandatory Prepayments. (a) Unless the Required Prepayment
Lenders shall otherwise agree, if on any date any Group Member shall receive Net
Cash Proceeds from any Mandatory Prepayment Event, then, subject to any
limitations (including satisfaction of any repayment or redemption requirements)
contained in the Existing Debt Instruments or in Existing Contractual
Obligations, and unless a Reinvestment Notice shall be delivered in respect
thereof, such Net Cash Proceeds shall be applied within 2 days of such date
toward the prepayment of the Term Loans as set forth in Section 2.12(c);
provided, that, notwithstanding the foregoing, (i) the aggregate Net Cash
Proceeds that may be
35
excluded from the foregoing requirement pursuant to a Reinvestment Notice shall
not exceed $500,000,000 in any fiscal year of Holdings and (ii) on each
Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment
Amount with respect to the relevant Reinvestment Event shall be applied toward
the prepayment of the Term Loans as set forth in Section 2.12(c); provided,
further, that (i) any such Net Cash Proceeds from any Secured Mortgage
Indebtedness shall not be excluded from the foregoing requirement pursuant to a
Reinvestment Notice until there are no CMBS Bridge Loans outstanding and (ii)
any such Net Cash Proceeds from any Refinancing Indebtedness shall be applied to
prepay the Term Loans only to the extent that such Net Cash Proceeds are not
applied to repay the Indebtedness being refinanced thereby. The provisions of
this Section do not constitute a consent to the issuance of any equity
securities by any entity whose equity securities are pledged pursuant to the
Guarantee and Pledge Agreement, a consent to the incurrence of any Indebtedness
by any Group Member, or a consent to the consummation of any Disposition not
permitted by Section 7.5.
(b) Unless the Required Prepayment Lenders shall otherwise agree,
if, for any fiscal year of Holdings commencing with the fiscal year ending
December 31, 2005, there shall be Excess Cash Flow, then, on the relevant Excess
Cash Flow Application Date (subject to the limitations contained in the Existing
Debt Instruments), the Tranche A Term Loans and Tranche B Term Loans shall be
prepaid by an amount equal to 75% of such Excess Cash Flow, as set forth in
Section 2.12(c). Each such prepayment shall be made on a date (an "Excess Cash
Flow Application Date") no later than five Business Days after the earlier of
(i) the date on which the financial statements of Holdings referred to in
Section 6.1(a), for the fiscal year with respect to which such prepayment is
made, are required to be delivered to the Lenders and (ii) the date such
financial statements are actually delivered.
(c) Amounts to be applied in connection with prepayments made
pursuant to Section 2.12(a) in connection with Secured Mortgage Indebtedness or
any refinancing thereof shall be applied, first, to the prepayment of the CMBS
Bridge Loans and, second, to the prepayment of the Tranche A Term Loans and
Tranche B Term Loans in accordance with Section 2.18. Amounts to be applied in
connection with prepayments made pursuant to Section 2.12(a) in connection with
the issuance of Capital Stock shall be applied, at the relevant Borrower's
option, to either the prepayment of the CMBS Bridge Loans or to the prepayment
of the Tranche A Term Loans and the Tranche B Term Loans in accordance with
Section 2.18. Amounts to be applied in connection with prepayments made pursuant
to Section 2.12(a) in connection with the incurrence of Indebtedness (other than
any Secured Mortgage Indebtedness and any refinancings thereof) and any Asset
Sale, Purchase Price Refund or Recovery Event shall be applied, first, to the
prepayment of the Tranche A Term Loans and the Tranche B Term Loans in
accordance with Section 2.18 and, second, to the prepayment of the CMBS Bridge
Loans. Amounts to be applied in connection with prepayments made pursuant to
Section 2.12(b) shall be applied to the prepayment of the Tranche A Term Loans
and the Tranche B Term Loans in accordance with Section 2.18.
2.13 Conversion and Continuation Options. (a) Each Borrower may
elect from time to time to convert Eurodollar Loans owed by it to Base Rate
Loans by giving the Administrative Agent no later than 12:00 P.M., New York City
time, on the date that is at least two Business Days' prior to such conversion
irrevocable notice of such election, provided that any such conversion of
Eurodollar Loans may be made only on the last day of an Interest Period with
respect thereto. Each Borrower may elect from time to time to convert Base Rate
Loans owed by it to Eurodollar Loans by giving the Administrative Agent no later
than 12:00 P.M., New York City time, on the date that is at least three Business
Days' prior to such conversion irrevocable notice of such election (which notice
shall specify the length of the initial Interest Period therefor), provided that
no Base Rate Loan under a particular Facility may be converted into a Eurodollar
Loan (i) when any Event of Default has occurred and is continuing and the
Administrative Agent has, or the Majority Facility Lenders in respect of such
Facility have, determined in its or their sole discretion not to permit such
conversions or (ii) after the date that is
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one month prior to the final scheduled termination or maturity date of such
Facility. Upon receipt of any such notice the Administrative Agent shall
promptly notify each relevant Lender thereof.
(b) Each Borrower may elect to continue any Eurodollar Loan owed by
it as such upon the expiration of the then current Interest Period with respect
thereto by giving irrevocable notice to the Administrative Agent, in accordance
with the applicable provisions of the term "Interest Period" set forth in
Section 1.1, of the length of the next Interest Period to be applicable to such
Loan, provided that no Eurodollar Loan under a particular Facility may be
continued as such (i) when any Event of Default has occurred and is continuing
and the Administrative Agent has, or the Majority Facility Lenders in respect of
such Facility have, determined in its or their sole discretion not to permit
such continuations or (ii) after the date that is one month prior to the final
scheduled termination or maturity date of such Facility, and provided further,
that if the relevant Borrower shall fail to give any required notice as
described above in this paragraph or if such continuation is not permitted
pursuant to the preceding proviso, such Loans shall be converted automatically
to Base Rate Loans on the last day of such then expiring Interest Period. Upon
receipt of any such notice the Administrative Agent shall promptly notify each
relevant Lender thereof.
(c) A Borrower may give the Administrative Agent telephonic notice
of any proposed conversion/continuation by such time as may be required under
this Section 2.13 (or by the definition of the term "Interest Period" in Section
1.1) if the Borrower confirms such telephonic notice by delivery of written
notice to the Administrative Agent by facsimile transmission promptly, but in no
event later than 1:00 P.M., New York City time, on the same day.
2.14 Minimum Amounts and Maximum Number of Eurodollar Tranches.
Notwithstanding anything to the contrary in this Agreement, all borrowings,
conversions, continuations and optional prepayments of Eurodollar Loans and all
selections of Interest Periods shall be in such amounts and be made pursuant to
such elections so that, (a) after giving effect thereto, the aggregate principal
amount of the Eurodollar Loans comprising each Eurodollar Tranche shall be equal
to $3,000,000 or a whole multiple of $500,000 in excess thereof and (b) no more
than ten Eurodollar Tranches shall be outstanding at any one time.
2.15 Interest Rates and Payment Dates. (a) Each Eurodollar Loan
shall bear interest for each day during each Interest Period with respect
thereto at a rate per annum equal to the Eurodollar Rate determined for such day
plus the Applicable Margin in effect for such day.
(b) Each Base Rate Loan shall bear interest for each day on which it
is outstanding at a rate per annum equal to the Base Rate in effect for such day
plus the Applicable Margin in effect for such day.
(c) (i) If all or a portion of the principal amount of any Loan or
Reimbursement Obligation shall not be paid when due (whether at the stated
maturity, by acceleration or otherwise), all outstanding Loans and Reimbursement
Obligations (whether or not overdue) (to the extent legally permitted) shall
bear interest at a rate per annum that is equal to (x) in the case of the Loans,
the rate that would otherwise be applicable thereto pursuant to the foregoing
provisions of this Section plus 2% or (y) in the case of Reimbursement
Obligations, the rate applicable to Base Rate Loans under the Revolving Credit
Facility plus 2%, and (ii) if all or a portion of any interest payable on any
Loan or Reimbursement Obligation or any commitment fee or other amount payable
hereunder shall not be paid when due (whether at the stated maturity, by
acceleration or otherwise), such overdue amount shall bear interest at a rate
per annum equal to the rate then applicable to Base Rate Loans under the
relevant Facility plus 2% (or, in the case of any such other amounts that do not
relate to a particular Facility, the rate then applicable to Base Rate Loans
under the Revolving Credit Facility plus 2%), in each case, with respect to
37
clauses (i) and (ii) above, from the date of such non-payment until such amount
is paid in full (after as well as before judgment).
(d) Interest shall be payable in arrears on each Interest Payment
Date, provided that interest accruing pursuant to paragraph (c) of this Section
shall be payable from time to time on demand.
2.16 Computation of Interest and Fees. (a) Interest, fees and
commissions payable pursuant hereto shall be calculated on the basis of a
360-day year for the actual days elapsed, except that, with respect to Base Rate
Loans on which interest is calculated on the basis of the Prime Rate, the
interest thereon shall be calculated on the basis of a 365- (or 366-, as the
case may be) day year for the actual days elapsed. In computing interest on any
Loan, the date of the making of the Loan or the first day of an Interest Period,
as the case may be, shall be included and the date of payment or the expiration
date of an Interest Period, as the case may be, shall be excluded. The
Administrative Agent shall as soon as practicable notify the relevant Borrower
and the relevant Lenders of each determination of a Eurodollar Rate or Base
Rate, as applicable. Any change in the interest rate on a Loan resulting from a
change in the Base Rate or the Eurocurrency Reserve Requirements shall become
effective as of the opening of business on the day on which such change becomes
effective. The Administrative Agent shall as soon as practicable notify the
relevant Borrower and the relevant Lenders of the effective date and the amount
of each such change in interest rate.
(b) Each determination of an interest rate by the Administrative
Agent pursuant to any provision of this Agreement shall be conclusive and
binding on the relevant Borrower and the Lenders in the absence of manifest
error. The Administrative Agent shall, at the request of any Borrower, deliver
to such Borrower a statement showing the quotations used by the Administrative
Agent in determining any interest rate pursuant to Section 2.15.
2.17 Inability to Determine Interest Rate. If prior to the first day
of any Interest Period:
(a) the Administrative Agent shall have determined in good faith
that, by reason of circumstances affecting the relevant market, adequate
and reasonable means do not exist for ascertaining the Eurodollar Rate for
such Interest Period, or
(b) the Administrative Agent shall have received notice from the
Majority Facility Lenders in respect of the relevant Facility that the
Eurodollar Rate determined or to be determined for such Interest Period
will not adequately and fairly reflect the cost to such Lenders (as
certified in good faith by such Lenders) of making or maintaining their
affected Loans during such Interest Period,
the Administrative Agent shall give telecopy or telephonic notice (promptly
confirmed in writing) thereof to the relevant Borrower and the relevant Lenders
as soon as practicable thereafter. If such notice is given (x) any Eurodollar
Loans under the relevant Facility requested to be made on the first day of such
Interest Period shall be made as Base Rate Loans, (y) any Loans under the
relevant Facility that were to have been converted on the first day of such
Interest Period to Eurodollar Loans shall be continued as Base Rate Loans and
(z) any outstanding Eurodollar Loans under the relevant Facility shall be
converted, on the last day of the then current Interest Period with respect
thereto, to Base Rate Loans. Until such notice has been withdrawn by the
Administrative Agent (which notice, in the case of Section 2.17(b), the
Administrative Agent shall withdraw promptly upon notice by Majority Facility
Lenders that such is no longer the case (which notice Majority Facility Lenders
shall promptly deliver to the Administrative Agent when such is no longer the
case)), no further Eurodollar Loans under the relevant Facility shall be
38
made or continued as such, nor shall any Borrower have the right to convert
Loans under the relevant Facility to Eurodollar Loans.
2.18 Pro Rata Treatment and Payments. (a) Each borrowing by any
Borrower from the Lenders hereunder, each payment by any Borrower on account of
any commitment fee or Letter of Credit fee, and any reduction of the Commitments
of the Lenders, shall be made pro rata according to the respective CMBS Bridge
Loan Percentages, Tranche A Term Loan Percentages, Tranche B Term Loan
Percentages or Revolving Credit Percentages, as the case may be, of the relevant
Lenders. Each payment of interest in respect of the Loans and each payment in
respect of fees payable hereunder shall be applied to the amounts of such
obligations owing to the Lenders pro rata according to the respective amounts
then due and owing to the Lenders.
(b) Subject to Section 2.18(d), each optional prepayment in respect
of the Term Loans shall be allocated among the Term Loan Facilities pro rata
according to the respective outstanding principal amounts of Term Loans under
such Facilities, except in the case of the prepayment and replacement of the
Term Loans under any Facility in the circumstances described in the last
paragraph of Section 10.1. Subject to Section 2.18(d), each mandatory prepayment
required by Section 2.12 to be applied to the Tranche A Term Loans and the
Tranche B Term Loans shall be, first, allocated among the Tranche A Term Loan
Facility and the Tranche B Term Loan Facility pro rata according to then
remaining installments thereof due during the calendar year of such mandatory
prepayment and applied to such installments in direct order of maturity and,
second, allocated among the Tranche A Term Loan Facility and the Tranche B Term
Loan Facility pro rata according to the respective outstanding principal amounts
of the Tranche A Term Loans and the Tranche B Term Loans and applied to the
installments thereof in direct order of maturity. Each payment on account of
principal of the Term Loans outstanding under any Term Loan Facility shall be
allocated among the Term Loan Lenders holding such Term Loans pro rata based on
the principal amount of such Term Loans held by such Term Loan Lenders. With
respect to any optional prepayment of the Tranche A Term Loans and the Tranche B
Term Loans, each payment on account of principal of such Term Loans shall be
applied to the installments thereof in a manner determined by Holdings. Amounts
repaid or prepaid on account of the Term Loans may not be reborrowed.
(c) Each payment (including each prepayment) by any Borrower on
account of principal of the Revolving Credit Loans shall be made pro rata
according to the respective outstanding principal amounts of the Revolving
Credit Loans of such Borrower then held by the Revolving Credit Lenders. Each
payment in respect of Reimbursement Obligations in respect of any Letter of
Credit shall be made to the Issuing Lender.
(d) Notwithstanding anything to the contrary in Sections 2.11, 2.12
or 2.18(b), so long as any Tranche A Term Loans are outstanding, each Tranche B
Term Loan Lender may, at its option, decline up to 100% of the portion of any
optional prepayment or mandatory payment applicable to the Tranche B Term Loans
of such Lender; accordingly, with respect to the amount of any optional
prepayment described in Section 2.11 or mandatory prepayment described in
Section 2.12 that is allocated to Tranche B Term Loans (such amounts,
respectively, the "Optional Prepayment Amount" and the "Mandatory Prepayment
Amount"), at any time when Tranche A Term Loans remain outstanding, the relevant
Borrower will:
(i) in the case of any optional prepayment of the Tranche B
Term Loans which such Borrower wishes to make, not later than 10
Business Days prior to the date on which such Borrower wishes to
make such optional prepayment, give the Administrative Agent
telephonic notice (promptly confirmed in writing) requesting
39
that the Administrative Agent prepare and provide to each Tranche B
Term Loan Lender a notice (each, a "Prepayment Option Notice") as
described below; and
(ii) in the case of any mandatory prepayment required to be
made pursuant to Section 2.12, on the date specified in Section 2.12
for such prepayment, (A) give the Administrative Agent telephonic
notice (promptly confirmed in writing) requesting that the
Administrative Agent prepare and provide to each Tranche B Term Loan
Lender a Prepayment Option Notice as described below and (B) deposit
with the Administrative Agent the Mandatory Prepayment Amount.
As promptly as practicable after receiving such notice from the
relevant Borrower, the Administrative Agent will send to each Tranche B Term
Loan Lender a Prepayment Option Notice, which shall be substantially in the form
of Exhibit G, and shall include an offer by such Borrower to prepay on the
Prepayment Date the Tranche B Term Loans of such Lender by an amount equal to
the portion of the Optional Prepayment Amount or Mandatory Prepayment Amount, as
the case may be, indicated in such Lender's Prepayment Option Notice as being
applicable to such Lender's Tranche B Term Loans. The "Prepayment Date" in
respect of any Prepayment Option Notice shall be the date which is (i) in the
case of a Prepayment Option Notice relating to an optional prepayment, the later
of (A) five Business Days after the date of such Prepayment Option Notice and
(B) the date on which the relevant Borrower has advised the Administrative Agent
that it wishes to make such optional prepayment and (ii) in the case of a
Prepayment Option Notice relating to a mandatory prepayment, the date which is
five Business Days after the date of such Prepayment Option Notice.
On the Prepayment Date:
(i) in the case of any optional prepayment, the relevant
Borrower shall pay to the Administrative Agent the Optional
Prepayment Amount, and the Administrative Agent shall (A) apply the
Optional Prepayment Amount toward prepayment of the outstanding
Tranche B Term Loans in respect of which Tranche B Term Loan Lenders
have accepted optional prepayment as described above and (B) apply
the remaining portion of the Optional Prepayment Amount not accepted
by the Tranche B Term Loan Lenders toward prepayment of the Tranche
A Term Loans; and
(ii) in the case of any mandatory prepayment, the
Administrative Agent shall (A) apply the Mandatory Prepayment Amount
toward prepayment of the outstanding Tranche B Term Loans in respect
of which Tranche B Term Loan Lenders have accepted mandatory
prepayment as described above and (B) apply the remaining portion of
the Mandatory Prepayment Amount not accepted by the Tranche B Term
Loan Lenders toward prepayment of the Tranche A Term Loans.
This Section 2.18(d) shall not be applicable in the case of a prepayment in full
of all Term Loans.
(e) Unless otherwise designated by the relevant Borrower, the
application of any payment of Loans under any Facility (including optional and
mandatory prepayments) shall be made, first, to Base Rate Loans under such
Facility and, second, to Eurodollar Loans under such Facility. Each payment of
the Loans (except in the case of Swing Line Loans and Revolving Credit Loans
that are Base Rate Loans) shall be accompanied by accrued interest to the date
of such payment on the amount paid.
(f) All payments (including prepayments) to be made by any Borrower
hereunder, whether on account of principal, interest, fees or otherwise, shall
be made without setoff or counterclaim and shall be made no later than 2:00
P.M., New York City time, on the due date thereof to the
40
Administrative Agent, for the account of the relevant Lenders, at the Payment
Office, in Dollars and in immediately available funds. Any payment made by any
Borrower after 2:00 P.M., New York City time, on any Business Day shall be
deemed to have been on the next following Business Day. If any payment hereunder
(other than payments on the Eurodollar Loans) becomes due and payable on a day
other than a Business Day, such payment shall be extended to the next succeeding
Business Day. If any payment on a Eurodollar Loan becomes due and payable on a
day other than a Business Day, the maturity thereof shall be extended to the
next succeeding Business Day unless the result of such extension would be to
extend such payment into another calendar month, in which event such payment
shall be made on the immediately preceding Business Day. In the case of any
extension of any payment of principal pursuant to the preceding two sentences,
interest thereon shall be payable at the then applicable rate during such
extension.
(g) Unless the Administrative Agent shall have been notified in
writing by any Lender prior to a borrowing that such Lender will not make the
amount that would constitute its share of such borrowing available to the
Administrative Agent, the Administrative Agent may assume that such Lender is
making such amount available to the Administrative Agent, and the Administrative
Agent may, in reliance upon such assumption, make available to the relevant
Borrower a corresponding amount. If such amount is not made available to the
Administrative Agent by the required time on the Borrowing Date therefor, such
Lender shall pay to the Administrative Agent, on demand, such amount with
interest thereon at a rate equal to the greater of (i) the Federal Funds
Effective Rate and (ii) a rate reasonably determined by the Administrative Agent
in accordance with banking industry rules on interbank compensation, for the
period until such Lender makes such amount immediately available to the
Administrative Agent. A certificate of the Administrative Agent submitted to any
Lender with respect to any amounts owing under this paragraph shall be
conclusive in the absence of manifest error. If such Lender's share of such
borrowing is not made available to the Administrative Agent by such Lender
within three Business Days after such Borrowing Date, the Administrative Agent
shall also be entitled to recover such amount with interest thereon at the rate
per annum applicable to Base Rate Loans under the relevant Facility, on demand,
from the relevant Borrower. If such Lender shall pay to the Administrative Agent
the corresponding amount of such Lender's share of such borrowing that was made
available by the Administrative Agent to the relevant Borrower, the amount so
paid shall constitute such Lender's Loan, and if both such Lender and such
Borrower shall pay and repay such corresponding amount, the Administrative Agent
shall promptly pay to such Borrower such corresponding amount of such advance by
the Administrative Agent. Nothing herein shall be deemed to relieve any Lender
of its obligation to make Loans or shall be deemed to limit the rights of any
party against any such Lender.
(h) Unless the Administrative Agent shall have been notified in
writing by the relevant Borrower prior to the date of any payment due to be made
by such Borrower hereunder that such Borrower will not make such payment to the
Administrative Agent, the Administrative Agent may assume that such Borrower is
making such payment, and the Administrative Agent may, but shall not be required
to, in reliance upon such assumption, make available to the Lenders their
respective pro rata shares of a corresponding amount. If such payment is not
made to the Administrative Agent by such Borrower within three Business Days
after such due date, the Administrative Agent shall be entitled to recover, on
demand, from each Lender to which any amount which was made available pursuant
to the preceding sentence, such amount with interest thereon at the rate per
annum equal to the daily average Federal Funds Effective Rate. Nothing herein
shall be deemed to limit the rights of the Administrative Agent or any Lender
against such Borrower.
(i) Upon receipt by the Administrative Agent of payments on behalf
of Lenders, the Administrative Agent shall promptly distribute such payments to
the Lender or Lenders entitled thereto, in like funds as received by the
Administrative Agent.
41
2.19 Requirements of Law. (a) If the adoption of or any change in
any Requirement of Law or in the interpretation or application thereof or
compliance by any Lender with any request or directive (whether or not having
the force of law) from any central bank or other Governmental Authority made
subsequent to the date hereof:
(i) shall subject any Lender to any tax of any kind whatsoever
with respect to this Agreement, any Letter of Credit, any
Application or any Eurodollar Loan made by it, or change the basis
of taxation of payments to such Lender in respect thereof (except
for Non-Excluded Taxes covered by Section 2.20 and changes in the
rate of tax on the overall net income of such Lender);
(ii) shall impose, modify or hold applicable any reserve,
special deposit, compulsory loan or similar requirement against
assets held by, deposits or other liabilities in or for the account
of, advances, loans or other extensions of credit by, or any other
acquisition of funds by, any office of such Lender that is not
otherwise included in the determination of the Eurodollar Rate
hereunder; or
(iii) shall impose on such Lender any other condition;
and the result of any of the foregoing is to increase the cost to such Lender,
by an amount which such Lender deems in good faith to be material, of making,
converting into, continuing or maintaining Eurodollar Loans or issuing or
participating in Letters of Credit, or to reduce any amount receivable hereunder
in respect thereof, then, in any such case, the relevant Borrower shall pay such
Lender, within 30 days of written demand, any additional amounts necessary to
compensate such Lender for such increased cost or reduced amount receivable on
the Loans owed by such Borrower. Any such demand for additional amounts pursuant
to this Section 2.19(a) shall be accompanied by a statement as to the amount of
such additional amount and include a brief summary of the basis for such demand.
(b) If any Lender shall have determined that the adoption of or any
change in any Requirement of Law regarding capital adequacy or in the
interpretation or application thereof or compliance by such Lender or any
corporation controlling such Lender with any request or directive regarding
capital adequacy (whether or not having the force of law) from any Governmental
Authority made subsequent to the date hereof shall have the effect of reducing
the rate of return on such Lender's or such corporation's capital as a
consequence of its obligations to a Borrower hereunder or under or in respect of
any Letter of Credit to a level below that which such Lender or such corporation
could have achieved but for such adoption, change or compliance (taking into
consideration such Lender's or such corporation's policies with respect to
capital adequacy) by an amount deemed in good faith by such Lender to be
material, then within 30 days after submission by such Lender to the Borrowers
(with a copy to the Administrative Agent) of a written request therefor, each
Borrower shall pay to such Lender such additional amount or amounts as will
compensate such Lender or such corporation for such reduction that is
attributable to the Loans owed to such Lender by such Borrower; provided that no
Borrower shall be required to compensate a Lender pursuant to this paragraph for
any amounts incurred more than six months prior to the date that such Lender
notifies such Borrower of such Lender's intention to claim compensation
therefor; and provided further that, if the circumstances giving rise to such
claim have a retroactive effect, then such six-month period shall be extended to
include the period of such retroactive effect. Any request for additional
amounts pursuant to this Section 2.19(b) shall be accompanied by a statement as
to the amount of such additional amount and include a brief summary of the basis
for such demand.
(c) A certificate as to any additional amounts payable pursuant to
this Section submitted by any Lender to the relevant Borrower (with a copy to
the Administrative Agent) shall be conclusive in
42
the absence of manifest error. The obligations of the Borrowers pursuant to this
Section shall survive the termination of this Agreement and the payment of the
Loans and all other amounts payable hereunder.
2.20 Taxes. (a) All payments made by any Borrower under this
Agreement shall be made free and clear of, and without deduction or withholding
for or on account of, any present or future income, stamp or other taxes,
levies, imposts, duties, charges, fees, deductions or withholdings, now or
hereafter imposed, levied, collected, withheld or assessed by any Governmental
Authority, excluding net income taxes, gross receipts, capital and/or franchise
taxes imposed on any Agent or any Lender as a result of a present or former
connection between such Agent or such Lender and the jurisdiction of the
Governmental Authority imposing such tax or any political subdivision or taxing
authority thereof or therein (other than any such connection arising solely from
such Agent's or such Lender's having executed, delivered or performed its
obligations or received a payment under, or enforced, this Agreement or any
other Loan Document). If any such non-excluded taxes, levies, imposts, duties,
charges, fees, deductions or withholdings ("Non-Excluded Taxes") or any Other
Taxes are required to be withheld from any amounts payable to any Agent or any
Lender hereunder, the amounts so payable to such Agent or such Lender shall be
increased to the extent necessary to yield to such Agent or such Lender (after
payment of all Non-Excluded Taxes and Other Taxes) interest or any such other
amounts payable hereunder at the rates or in the amounts specified in this
Agreement; provided, however, that no Borrower shall be required to increase any
such amounts payable to any Lender with respect to any Non-Excluded Taxes (i)
that are attributable to such Lender's failure to comply with the requirements
of paragraph (d) or (e) of this Section or (ii) that are United States
withholding taxes imposed on amounts payable to such Lender at the time such
Lender becomes a party to this Agreement (or, in the case of an SPC, at the time
such SPC initially makes a Loan hereunder), except if and to the extent that
such Lender's assignor (if any) (or, in the case of an SPC, such SPC's Granting
Lender) was entitled, at the time of assignment (or, in the case of an SPC, at
the time such SPC initially makes a Loan hereunder), to receive additional
amounts from such Borrower with respect to such Non-Excluded Taxes pursuant to
this paragraph (a).
(b) In addition, each Borrower shall pay any Other Taxes applicable
to the Loans owed by it hereunder to the relevant Governmental Authority in
accordance with applicable law.
(c) Whenever any Non-Excluded Taxes or Other Taxes are payable by a
Borrower, as promptly as reasonably possible thereafter such Borrower shall send
to the Administrative Agent for the account of the relevant Agent or Lender, as
the case may be, a certified copy of an original official receipt received by
such Borrower or other evidence reasonably acceptable to the Administrative
Agent showing payment thereof. If a Borrower fails to pay any Non-Excluded Taxes
or Other Taxes when due to the appropriate taxing authority, such Borrower shall
indemnify the Agents and the Lenders for any incremental taxes, interest or
penalties that may become payable by any Agent or any Lender as a result of any
such failure. The agreements in this Section shall survive the termination of
this Agreement and the payment of the Loans and all other amounts payable
hereunder until the expiration of the statute of limitations applicable to such
taxes.
(d) (1) Each Lender that is a U.S. person as defined in Section
7701(a)(30) of the Code and that is not a corporation for U.S. federal income
tax purposes and/or whose name does not contain an unambiguous expression of
corporate status as described in Treasury Regulation Section
1.6049-4(c)(1)(ii)(A)(1) and/or whose lending office is in a jurisdiction
outside the U.S. shall deliver to the Borrowers and the Administrative Agent a
duly executed U.S. Internal Revenue Service Form W-9 and (2) each Lender (or
Transferee) that is not a "U.S. Person" as defined in Section 7701(a)(30) of the
Code (a "Non-U.S. Lender") shall deliver to the Borrowers and the Administrative
Agent (or, in the case of a Participant, to the Lender from which the related
participation shall have been purchased) two original copies of either a duly
executed U.S. Internal Revenue Service Form W-8BEN or Form W-8ECI, or, in the
case of a Non-U.S. Lender claiming exemption from U.S. federal withholding tax
under
43
Section 871(h) or 881(c) of the Code with respect to payments of "portfolio
interest" a statement substantially in the form of Exhibit H and Form W-8BEN, or
any subsequent versions thereof or successors thereto properly completed and
duly executed by such Non-U.S. Lender claiming complete exemption from, or a
reduced rate of, U.S. federal withholding tax on all payments by the Borrowers
under this Agreement and the other Loan Documents. Such forms shall be delivered
by each Lender on or before the date it becomes a party to this Agreement (or,
in the case of an SPC, at the time such SPC initially makes a Loan hereunder).
In addition, each Lender shall deliver such forms (or ay successor thereto) to
the Borrowers promptly upon the obsolescence or invalidity of any form
previously delivered by such Lender. Each Lender shall promptly notify the
Borrowers at any time it determines that it is no longer in a position to
provide any previously delivered certificate to the Borrowers (or any other form
of certification adopted by the U.S. taxing authorities for such purpose).
Notwithstanding any other provision of this paragraph, a Lender shall not be
required to deliver any form pursuant to this paragraph that such Lender is not
legally able to deliver.
(e) A Lender that is entitled to an exemption from or reduction of
non-U.S. withholding tax under the law of the jurisdiction in which a Borrower
is located, or any treaty to which such jurisdiction is a party, with respect to
payments under this Agreement shall deliver to such Borrower (with a copy to the
Administrative Agent), at the time or times prescribed by applicable law or
reasonably requested by such Borrower, such properly completed and executed
documentation prescribed by applicable law or treaty as will permit such
payments to be made without withholding or at a reduced rate of withholding,
provided that such Lender is legally entitled to complete, execute and deliver
such documentation.
(f) For purposes of this Section 2.20, an SPC that makes a Loan
pursuant to Section 10.6(g) shall be treated as a Lender.
2.21 Indemnity. Each Borrower agrees to indemnify each Lender for,
and to hold each Lender harmless from, any loss or expense that such Lender may
sustain or incur as a consequence of (a) default by such Borrower in making a
borrowing of, conversion into or continuation of Eurodollar Loans after such
Borrower has given a notice requesting the same in accordance with the
provisions of this Agreement, (b) default by such Borrower in making any
prepayment after such Borrower has given a notice thereof in accordance with the
provisions of this Agreement or (c) the making by such Borrower of a prepayment
or conversion of Eurodollar Loans on a day that is not the last day of an
Interest Period with respect thereto. Such indemnification may include an amount
equal to the excess, if any, of (i) the amount of interest that would have
accrued on the amount so prepaid, or not so borrowed, converted or continued,
for the period from the date of such prepayment or of such failure to borrow,
convert or continue to the last day of such Interest Period (or, in the case of
a failure to borrow, convert or continue, the Interest Period that would have
commenced on the date of such failure) in each case at the applicable rate of
interest for such Loans provided for herein (excluding, however, the Applicable
Margin included therein, if any) over (ii) the amount of interest (as reasonably
determined by such Lender) that would have accrued to such Lender on such amount
by placing such amount on deposit for a comparable period with leading banks in
the interbank Eurodollar market. A certificate as to any amounts payable
pursuant to this Section submitted to the relevant Borrower by any Lender shall
be conclusive in the absence of manifest error. This covenant shall survive the
termination of this Agreement and the payment of the Loans and all other amounts
payable hereunder.
2.22 Illegality. Notwithstanding any other provision herein, if the
adoption of or any change in any Requirement of Law or in the interpretation or
application thereof shall make it unlawful for any Lender to make or maintain
Eurodollar Loans as contemplated by this Agreement, (a) the commitment of such
Lender hereunder to make Eurodollar Loans, continue Eurodollar Loans as such and
convert Base Rate Loans to Eurodollar Loans shall forthwith be canceled and (b)
such Lender's Loans
44
then outstanding as Eurodollar Loans, if any, shall be converted automatically
to Base Rate Loans on the respective last days of the then current Interest
Periods with respect to such Loans or within such earlier period as required by
law. If any such conversion of a Eurodollar Loan occurs on a day which is not
the last day of the then current Interest Period with respect thereto, the
relevant Borrower shall pay to such Lender such amounts, if any, as may be
required pursuant to Section 2.21. If, at any time after an event giving rise to
the operation of this Section 2.22 with respect to a Lender has occurred, such
Lender determines that it may lawfully make Eurodollar Loans, such Lender shall
promptly give written notice of such determination to the Borrowers and the
Administrative Agent, and the Administrative Agent shall promptly transmit such
notice to each other Lender. Each Borrower's right to request, and such Lender's
obligation, if any, to make Eurodollar Loans shall thereupon be restored.
2.23 Change of Lending Office. Each Lender agrees that, upon the
occurrence of any event giving rise to the operation of Section 2.19, 2.20(a) or
2.22 with respect to such Lender, it will, if requested by the relevant
Borrower, use reasonable efforts (subject to overall policy considerations of
such Lender) to designate another lending office for any Loans affected by such
event with the object of avoiding the consequences of such event; provided, that
such designation is made on terms that, in the sole judgment of such Lender,
cause such Lender and its lending office(s) to suffer no economic, legal or
regulatory disadvantage, and provided, further, that nothing in this Section
shall affect or postpone any of the obligations of any Borrower or the rights of
any Lender pursuant to Section 2.19, 2.20(a) or 2.22.
2.24 Replacement of Lenders under Certain Circumstances.
Notwithstanding any provision to the contrary in this Agreement, the Borrowers
shall be permitted to replace any Lender that (a) requests reimbursement for
amounts owing pursuant to Section 2.19 or 2.20 or gives a notice of illegality
pursuant to Section 2.22 or (b) defaults in its obligation to make Loans
hereunder, with a replacement financial institution; provided that, as to any
replacement, (i) such replacement does not conflict with any Requirement of Law,
(ii) prior to any such replacement, such Lender shall not have, in accordance
with Section 2.23, eliminated the continued need for payment of amounts owing
pursuant to Section 2.19 or 2.20 or eliminated the illegality referred to in
such notice of illegality given pursuant to Section 2.22, (iii) the replacement
financial institution or institutions shall purchase, at par, all Loans and
other amounts owing to such replaced Lender on or prior to the date of
replacement, (iv) the Borrowers shall be liable to such replaced Lender under
Section 2.21 (as though Section 2.21 were applicable) if any Eurodollar Loan
owing to such replaced Lender shall be purchased other than on the last day of
the Interest Period relating thereto, (v) the replacement financial institution,
if not already a Lender, shall be reasonably satisfactory to the Administrative
Agent, (vi) the replaced Lender shall be obligated to make such replacement in
accordance with the provisions of Section 10.6 (provided that the Borrowers
shall be obligated to pay the registration and processing fee referred to
therein), (vii) the Borrowers shall pay all additional amounts (if any) required
pursuant to Section 2.19 or 2.20, as the case may be, in respect of any period
prior to the date on which such replacement shall be consummated, and (viii) any
such replacement shall not be deemed to be a waiver of any rights that the
Borrowers, the Administrative Agent or any other Lender shall have against the
replaced Lender.
SECTION 3. LETTERS OF CREDIT
3.1 L/C Commitment. (a) Subject to the terms and conditions hereof,
the Issuing Lender, in reliance on the agreements of the other Revolving Credit
Lenders set forth in Section 3.4(a), agrees to issue letters of credit (the
"Letters of Credit") for the account of any of the Borrowers (to support such
Borrower's obligations or the obligations of any of its Subsidiaries) on any
Business Day during the Revolving Credit Commitment Period in such form as may
be approved from time to time by the Issuing Lender; provided, that the Issuing
Lender shall not have any obligation to issue any Letter of Credit for the
account of any Borrower if, after giving effect to such issuance, (i) the L/C
Obligations would exceed the L/C Commitment, (ii) the aggregate amount of the
Available Revolving Credit
45
Commitments would be less than zero or (iii) the aggregate amount of the
Revolving Extensions of Credit owing by such Borrower would exceed the limit
applicable to such Borrower set forth in Section 2.4(c). Each Letter of Credit
shall (i) be denominated in Dollars and (ii) expire no later than the earlier of
(x) the first anniversary of its date of issuance and (y) the date which is five
Business Days prior to the Revolving Credit Termination Date; provided that any
Letter of Credit with a one-year term may provide for the renewal thereof for
additional one-year periods (which shall in no event extend beyond the date
referred to in clause (y) above).
(b) The Issuing Lender shall not at any time be obligated to issue
any Letter of Credit hereunder if such issuance would conflict with, or cause
the Issuing Lender or any L/C Participant to exceed any limits imposed by, any
applicable Requirement of Law.
3.2 Procedure for Issuance of Letter of Credit. Any of the Borrowers
may from time to time request that the Issuing Lender issue a Letter of Credit
by delivering to the Issuing Lender at its address for notices specified herein
an Application therefor, completed to the satisfaction of the Issuing Lender,
and such other certificates, documents and other papers and information as such
Issuing Lender may reasonably request. Concurrently with the delivery of an
Application to the Issuing Lender, the relevant Borrower shall deliver a copy
thereof to the Administrative Agent. Upon receipt of any Application, the
Issuing Lender will process such Application and the certificates, documents and
other papers and information delivered to it in connection therewith in
accordance with its customary procedures and shall promptly issue the Letter of
Credit requested thereby by issuing the original of such Letter of Credit to the
beneficiary thereof or as otherwise may be agreed to by the Issuing Lender and
the relevant Borrower (but in no event shall the Issuing Lender be required to
issue any Letter of Credit earlier than three Business Days after its receipt of
the Application therefor and all such other certificates, documents and other
papers and information relating thereto). Promptly after issuance by the Issuing
Lender of a Letter of Credit, the Issuing Lender shall furnish a copy of such
Letter of Credit to the relevant Borrower. The Issuing Lender shall promptly
give notice to the Administrative Agent (which shall in turn give notice to the
Revolving Credit Lenders) of the issuance of each Letter of Credit (including
the face amount thereof), and shall provide a copy of such Letter of Credit to
the Administrative Agent as soon as possible after the date of issuance.
3.3 Fees and Other Charges. (a) Each Borrower will pay a fee on the
aggregate drawable amount of all its outstanding Letters of Credit at a per
annum rate equal to the Applicable Margin then in effect with respect to
Eurodollar Loans under the Revolving Credit Facility, shared ratably among the
Revolving Credit Lenders in accordance with their respective Revolving Credit
Percentages and payable quarterly in arrears on each L/C Fee Payment Date after
the issuance date. In addition, each Borrower shall pay to the Issuing Lender
for its own account a fronting fee on the aggregate drawable amount of all its
outstanding Letters of Credit in an amount to be agreed upon in writing between
such Borrower and the Issuing Lender, payable quarterly in arrears on each L/C
Fee Payment Date after the issuance date.
(b) In addition to the foregoing fees, the relevant Borrower shall
pay or reimburse the Issuing Lender for such normal and customary costs and
expenses as are incurred or charged by the Issuing Lender in issuing,
negotiating, effecting payment under, amending or otherwise administering any
Letter of Credit.
3.4 L/C Participations. (a) The Issuing Lender irrevocably agrees to
grant and hereby grants to each L/C Participant, and, to induce the Issuing
Lender to issue Letters of Credit hereunder, each L/C Participant irrevocably
agrees to accept and purchase and hereby accepts and purchases from the Issuing
Lender, on the terms and conditions hereinafter stated, for such L/C
Participant's own account and risk, an undivided interest equal to such L/C
Participant's Revolving Credit
46
Percentage in the Issuing Lender's obligations and rights under each Letter of
Credit hereunder and the amount of each draft paid by the Issuing Lender
thereunder. Each L/C Participant unconditionally and irrevocably agrees with the
Issuing Lender that, if a draft is paid under any Letter of Credit for which the
Issuing Lender is not reimbursed in full by the Borrowers in accordance with the
terms of this Agreement, such L/C Participant shall pay to the Administrative
Agent for the account of the Issuing Lender upon demand at the Issuing Lender's
address for notices specified herein (and thereafter the Administrative Agent
shall promptly pay to the Issuing Lender) an amount equal to such L/C
Participant's Revolving Credit Percentage of the amount of such draft, or any
part thereof, that is not so reimbursed. Each L/C Participant's obligation to
pay such amount shall be absolute and unconditional and shall not be affected by
any circumstance, including (i) any setoff, counterclaim, recoupment, defense or
other right that such L/C Participant may have against the Issuing Lender, any
Borrower or any other Person for any reason whatsoever, (ii) the occurrence or
continuance of a Default or an Event of Default or the failure to satisfy any of
the other conditions specified in Section 5, (iii) any adverse change in the
condition (financial or otherwise) of any Borrower, (iv) any breach of this
Agreement or any other Loan Document by any Borrower, any other Loan Party or
any other L/C Participant or (v) any other circumstance, happening or event
whatsoever, whether or not similar to any of the foregoing.
(b) If any amount (a "Participation Amount") required to be paid by
any L/C Participant to the Issuing Lender pursuant to Section 3.4(a) in respect
of any unreimbursed portion of any payment made by the Issuing Lender under any
Letter of Credit is paid to the Issuing Lender within three Business Days after
the date such payment is due, the Issuing Lender shall so notify the
Administrative Agent, which shall promptly notify the L/C Participants, and each
L/C Participant shall pay to the Administrative Agent, for the account of the
Issuing Lender, on demand (and thereafter the Administrative Agent shall
promptly pay to the Issuing Lender) an amount equal to the product of (i) such
Participation Amount, times (ii) the daily average Federal Funds Effective Rate
during the period from and including the date such payment is required to the
date on which such payment is immediately available to the Issuing Lender, times
(iii) a fraction the numerator of which is the number of days that elapse during
such period and the denominator of which is 360. If any Participation Amount
required to be paid by any L/C Participant pursuant to Section 3.4(a) is not
made available to the Administrative Agent for the account of the Issuing Lender
by such L/C Participant within three Business Days after the date such payment
is due, the Administrative Agent on behalf of the Issuing Lender shall be
entitled to recover from such L/C Participant, on demand, such Participation
Amount with interest thereon calculated from such due date at the rate per annum
applicable to Base Rate Loans under the Revolving Credit Facility. A certificate
of the Administrative Agent submitted on behalf of the Issuing Lender to any L/C
Participant with respect to any amounts owing under this Section shall be
conclusive in the absence of manifest error.
(c) Whenever, at any time after the Issuing Lender has made payment
under any Letter of Credit and has received from the Administrative Agent any
L/C Participant's pro rata share of such payment in accordance with Section
3.4(a), the Issuing Lender receives any payment related to such Letter of Credit
(whether directly from a Borrower or otherwise, including proceeds of collateral
applied thereto by the Issuing Lender), or any payment of interest on account
thereof, the Issuing Lender will distribute to the Administrative Agent for the
account of such L/C Participant (and thereafter the Administrative Agent will
promptly distribute to such L/C Participant) its pro rata share thereof;
provided, however, that in the event that any such payment received by the
Issuing Lender shall be required to be returned by the Issuing Lender, such L/C
Participant shall return to the Administrative Agent for the account of the
Issuing Lender (and thereafter the Administrative Agent shall promptly return to
the Issuing Lender) the portion thereof previously distributed by the Issuing
Lender.
3.5 Reimbursement Obligation of the Borrowers. Each Borrower agrees
to reimburse the Issuing Lender, on each date on which the Issuing Lender
notifies such Borrower of the date and amount of a draft presented under any
Letter of Credit issued for the account of such Borrower
47
and paid by the Issuing Lender, for the amount of (a) such draft so paid and (b)
any taxes, fees, charges or other costs or expenses incurred by the Issuing
Lender in connection with such payment (the amounts described in the foregoing
clauses (a) and (b) in respect of any drawing, collectively, the "Payment
Amount"). Each such payment shall be made to the Issuing Lender at its address
for notices specified herein in Dollars and in immediately available funds.
Interest shall be payable on each Payment Amount from the date of the applicable
drawing until payment in full at the rate set forth in (i) until the second
Business Day following the date of the applicable drawing, Section 2.15(b) and
(ii) thereafter, Section 2.15(c), provided that no amount payable in respect of
clause (b) of the preceding sentence shall be due and payable to the Issuing
Lender until the relevant Borrower is notified in writing of the incurrence of
such payment. Each drawing under any Letter of Credit shall (unless an event of
the type described in clause (i) or (ii) of Section 8(f) shall have occurred and
be continuing with respect to any Borrower, in which case the procedures
specified in Section 3.4 for funding by L/C Participants shall apply) constitute
a request by the relevant Borrower to the Administrative Agent for a borrowing
pursuant to Section 2.5 of Base Rate Loans (or, at the option of the
Administrative Agent and the Swing Line Lender in their sole discretion, a
borrowing pursuant to Section 2.7 of Swing Line Loans) in the amount of such
drawing. The Borrowing Date with respect to such borrowing shall be the first
date on which a borrowing of Revolving Credit Loans (or, if applicable, Swing
Line Loans) could be made, pursuant to Section 2.5 (or, if applicable, Section
2.7), if the Administrative Agent had received a notice of such borrowing at the
time the Administrative Agent receives notice from the Issuing Lender of such
drawing under such Letter of Credit.
3.6 Obligations Absolute. Each Borrower's obligations under this
Section 3 shall be absolute and unconditional under any and all circumstances
and irrespective of any setoff, counterclaim or defense to payment that such
Borrower may have or have had against the Issuing Lender, any beneficiary of a
Letter of Credit or any other Person. Each Borrower also agrees with the Issuing
Lender that the Issuing Lender and any L/C Participant shall not be responsible
for, and such Borrower's Reimbursement Obligations under Section 3.5 shall not
be affected by, among other things, the validity or genuineness of documents or
of any endorsements thereon, even though such documents shall in fact prove to
be invalid, fraudulent or forged, or any dispute between or among such Borrower
and any beneficiary of any Letter of Credit or any other party to which such
Letter of Credit may be transferred or any claims whatsoever of such Borrower
against any beneficiary of such Letter of Credit or any such transferee. Neither
the Issuing Lender nor any L/C Participant or other Lender shall be liable for
any error, omission, interruption or delay in transmission, dispatch or delivery
of any message or advice, however transmitted, in connection with any Letter of
Credit, except for errors or omissions found by a final and nonappealable
decision of a court of competent jurisdiction to have resulted from the gross
negligence or willful misconduct of the Issuing Lender. Each Borrower agrees
that any action taken or omitted by the Issuing Lender under or in connection
with any Letter of Credit or the related drafts or documents, if done in the
absence of gross negligence or willful misconduct and in accordance with the
standards of care specified in the Uniform Commercial Code of the State of New
York, shall be binding on such Borrower and shall not result in any liability of
the Issuing Lender to such Borrower.
48
3.7 Letter of Credit Payments. If any draft shall be presented for
payment under any Letter of Credit, the Issuing Lender shall promptly notify the
relevant Borrower and the Administrative Agent of the date and amount thereof.
The responsibility of the Issuing Lender to the relevant Borrower in connection
with any draft presented for payment under any Letter of Credit, in addition to
any payment obligation expressly provided for in such Letter of Credit, shall be
limited to determining that the documents (including each draft) delivered under
such Letter of Credit in connection with such presentment appear on their face
to be in conformity with such Letter of Credit.
3.8 Applications. To the extent that any provision of any
Application related to any Letter of Credit is inconsistent with the provisions
of this Section 3, the provisions of this Section 3 shall apply.
3.9 Letters of Credit Issued for Subsidiaries. Notwithstanding that
a Letter of Credit issued or outstanding hereunder is in support of any
obligations of a Subsidiary, the Borrower which requested the issuance of such
Letter of Credit shall be obligated to reimburse the Issuing Lender hereunder
for any and all drawings under such Letter of Credit.
3.10 Existing Letters of Credit. Upon the Closing Date, all Existing
Letters of Credit shall be deemed to have been issued under this Agreement and
shall be outstanding hereunder, and each Existing Letter of Credit Issuer shall
be the Issuing Lender with respect to the Existing Letters of Credit issued by
it.
SECTION 4. REPRESENTATIONS AND WARRANTIES
To induce the Agents and the Lenders to enter into this Agreement
and to make the Loans and issue or participate in the Letters of Credit,
Holdings and the Partnership hereby jointly and severally represent and warrant
to each Agent and each Lender, and the Company hereby represents and warrants to
each Agent and each Lender (to the extent that a representation and warranty
contained in this Section 4 pertains to the Company and/or its Subsidiaries),
that:
4.1 Financial Condition. (a) The unaudited pro forma consolidated
balance sheet of Holdings and its consolidated Subsidiaries as at June 30, 2004
(including the notes thereto) (the "Pro Forma Balance Sheet"), copies of which
have heretofore been furnished to each Lender, has been prepared giving effect
(as if such events had occurred on such date) to (i) the consummation of the
Merger, (ii) the Loans to be made on the Closing Date and the use of proceeds
thereof and (iii) the payment of fees and expenses in connection with the
foregoing. The Pro Forma Balance Sheet has been prepared based on the best
information available to Holdings as of the date of delivery thereof, and
presents fairly, in all material respects, on a pro forma basis the estimated
financial position of Holdings and its consolidated Subsidiaries as at June 30,
2004, assuming that the events specified in the preceding sentence had actually
occurred at such date.
(b) The audited consolidated balance sheets of Holdings and its
consolidated Subsidiaries as at December 31, 2002 and December 31, 2003, and the
related consolidated statements of income and of cash flows for the fiscal years
ended on such dates, reported on by and accompanied by an unqualified report
from Deloitte & Touche LLP, copies of which have heretofore been furnished to
each Lender, present fairly, in all material respects, the consolidated
financial condition of Holdings and its consolidated Subsidiaries as at such
date, and the consolidated results of its operations and its consolidated cash
flows for the respective fiscal years then ended. The unaudited consolidated
balance sheet of Holdings and its consolidated Subsidiaries as at September 30,
2004, and the related unaudited consolidated statements of income and cash flows
for the nine-month period ended on such date, copies of which have heretofore
been furnished to each Lender, present fairly, in all material respects, the
49
consolidated financial condition of Holdings and its consolidated Subsidiaries
as at such date, and the consolidated results of its operations and its
consolidated cash flows for the nine-month period then ended (subject to normal
year-end audit adjustments). All such financial statements, including the
related schedules and notes thereto, have been prepared in all material respects
in accordance with GAAP applied consistently throughout the periods involved
(except as approved by the aforementioned firm of accountants and disclosed
therein). Holdings and its consolidated Subsidiaries do not have any material
Contingent Obligations, contingent liabilities and liabilities for taxes, or any
long-term leases or unusual forward or long-term commitments, including, without
limitation, any interest rate or foreign currency swap or exchange transaction
or other obligation in respect of derivatives, that are not reflected in the
most recent financial statements referred to in this paragraph. Except as set
forth in Schedule 4.1(b), during the period from September 30, 2004 to and
including the date of this Agreement, there has been no Disposition by Holdings
and its consolidated Subsidiaries of any material part of its business or
Property.
(c) The audited consolidated balance sheets of the Target and its
consolidated Subsidiaries as at December 31, 2002 and December 31, 2003, and the
related consolidated statements of income and of cash flows for the fiscal years
ended on such dates, reported on by and accompanied by an unqualified report
from KPMG LLP, copies of which have heretofore been furnished to each Lender,
present fairly, in all material respects, the consolidated financial condition
of the Target and its consolidated Subsidiaries as at such date, and the
consolidated results of its operations and its consolidated cash flows for the
respective fiscal years then ended. The unaudited consolidated balance sheet of
the Target and its consolidated Subsidiaries as at June 30, 2004, and the
related unaudited consolidated statements of income and cash flows for the
six-month period ended on such date, copies of which have heretofore been
furnished to each Lender, present fairly, in all material respects, the
consolidated financial condition of the Target and its consolidated Subsidiaries
as at such date, and the consolidated results of its operations and its
consolidated cash flows for the six-month period then ended (subject to normal
year-end audit adjustments). All such financial statements, including the
related schedules and notes thereto, have been prepared in accordance with GAAP
applied consistently throughout the periods involved (except as approved by the
aforementioned firm of accountants and disclosed therein). The Target and its
consolidated Subsidiaries do not have any material Contingent Obligations,
contingent liabilities and liabilities for taxes, or any long-term leases or
unusual forward or long-term commitments, including, without limitation, any
interest rate or foreign currency swap or exchange transaction or other
obligation in respect of derivatives, that are not reflected in the most recent
financial statements referred to in this paragraph. Except as set forth in
Schedule 4.1(c), during the period from June 30, 2004 to and including the date
of this Agreement, there has been no Disposition by the Target and its
Subsidiaries of any material part of its business or Property.
4.2 No Change. Since September 30, 2004 (or, for the purposes of the
Closing Date only, with respect to the Target and its Subsidiaries, June 30,
2004) there has been no development or event that has had or could reasonably be
expected to have a Material Adverse Effect.
4.3 Corporate Existence; Compliance with Law. Each Group Member (a)
is duly organized, validly existing and in good standing under the laws of the
jurisdiction of its organization, (b) has the requisite power and authority, and
the legal right, to own and operate its Property, to lease the Property it
operates as lessee and to conduct the business in which it is currently engaged,
(c) is duly qualified as a foreign corporation or other organization and in good
standing under the laws of each jurisdiction where its ownership, lease or
operation of Property or the conduct of its business requires such qualification
except to the extent that the failure to be so qualified or in good standing
could not, in the aggregate, reasonably be expected to have a Material Adverse
Effect, and (d) is in compliance with all Requirements of Law except to the
extent that the failure to comply therewith could not, in the aggregate,
reasonably be expected to have a Material Adverse Effect.
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4.4 Corporate Power; Authorization; Enforceable Obligations. Each
Loan Party has the requisite power and authority, and the legal right, to make,
deliver and perform the Loan Documents to which it is a party, to consummate the
Merger and, in the case of Holdings and each Borrower, to borrow hereunder. Each
Loan Party has taken all necessary corporate or other action to authorize the
execution, delivery and performance of the Loan Documents to which it is a
party, to consummate the Merger and, in the case of Holdings and each Borrower,
to authorize the borrowings on the terms and conditions of this Agreement. No
consent or authorization of, filing with, notice to or other act by or in
respect of, any Governmental Authority or any other Person is required in
connection with the consummation of the Merger, the borrowings hereunder or the
execution, delivery, performance, validity or enforceability of this Agreement
or any of the other Loan Documents (subject, in the case of any transfer of
Pledged Equity, to the obtaining of any third party consents or approvals and
the giving of third party notices that may be required), except (i) consents,
authorizations, filings and notices which have been obtained or made and are in
full force and effect, (ii) consents, authorizations, filings and notices in
connection with contracts (other than agreements governing Secured Mortgage
Indebtedness) that are not, individually or in the aggregate, material to the
operations of any Borrower and which the failure to obtain or make could not
reasonably be expected, individually or in the aggregate, to have a Material
Adverse Effect, (iii) the consents listed on Schedule 4.4 which have not been
obtained or made and which the failure to obtain or make could not reasonably be
expected, individually or in the aggregate, to have a Material Adverse Effect
and (iv) the filings referred to in Section 4.19. Each Loan Document has been
duly executed and delivered on behalf of each Loan Party that is a party
thereto. This Agreement constitutes, and each other Loan Document upon execution
will constitute, a legal, valid and binding obligation of each Loan Party that
is a party thereto, enforceable against each such Loan Party in accordance with
its terms, except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the enforcement
of creditors' rights generally and by general equitable principles (whether
enforcement is sought by proceedings in equity or at law).
4.5 No Legal Bar. The execution, delivery and performance of this
Agreement and the other Loan Documents (subject, in the case of any transfer of
Pledged Equity, to the obtaining of any third party consents or approvals and
the giving of third party notices that may be required), the consummation of the
Merger, the issuance of Letters of Credit, the borrowings hereunder and the use
of the proceeds thereof will not violate any Requirement of Law or any
Contractual Obligation of any Group Member in any material respect and will not
result in, or require, the creation or imposition of any Lien on any of their
respective properties or revenues pursuant to any Requirement of Law or any such
Contractual Obligation (other than the Liens created by the Security Documents).
4.6 No Material Litigation. Other than as may be disclosed on
Schedule 4.6 hereto or in Holdings' or the Target's filings with the SEC prior
to the date of this Agreement, no litigation, investigation or proceeding of or
before any arbitrator or Governmental Authority is pending or, to the knowledge
of Holdings or any other Borrower, threatened by or against any Group Member or
against any of their respective properties or revenues (a) with respect to any
of the Loan Documents or any of the transactions contemplated hereby or thereby,
or (b) that could reasonably be expected to have a Material Adverse Effect.
4.7 No Default. No Group Member is in default under or with respect
to any of its Contractual Obligations in any respect that could reasonably be
expected to have a Material Adverse Effect. No Default or Event of Default has
occurred and is continuing.
4.8 Ownership of Property; Liens. Each Group Member has title in fee
simple to, or a valid leasehold interest in, all its material real property, and
good title to, or a valid leasehold interest in, all its other material
Property, and none of such Property is subject to any Lien except as permitted
by Section 7.3.
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4.9 Intellectual Property. Except as could not reasonably be
expected to have a Material Adverse Effect, (i) each Group Member owns, or is
licensed to use, all Intellectual Property necessary for the conduct of its
business as currently conducted, (ii) no claim has been asserted and is pending
by any Person challenging or questioning the use of any Intellectual Property or
the validity or effectiveness of any Intellectual Property, nor does any Group
Member know of any valid basis for any such claim and (iii) the use of
Intellectual Property by the Group Members does not infringe on the rights of
any Person.
4.10 Taxes. Each Group Member has filed or caused to be filed all
Federal, state and other material tax returns that are required to be filed and
has paid all taxes shown to be due and payable on said returns or on any
assessments made against it or any of its Property and all other taxes, fees or
other charges imposed on it or any of its Property by any Governmental Authority
(taking into account the due date (including any extensions thereto) for payment
of such taxes, fees, or other charges) (other than any the amount or validity of
which are currently being contested in good faith by appropriate proceedings and
with respect to which reserves in conformity with GAAP have been provided on the
books of the applicable Group Member); and, to the knowledge of Holdings or any
other Borrower, no material claim is being asserted, with respect to any such
tax, fee or other charge which could be reasonably expected to have a Material
Adverse Effect.
4.11 Federal Regulations. No part of the proceeds of any Loans, and
no other extensions of credit hereunder, will be used for "purchasing" or
"carrying" any "margin stock" within the respective meanings of each of the
quoted terms under Regulation U as now and from time to time hereafter in effect
in violation of the provisions of the Regulations of the Board.
4.12 Labor Matters. There are no strikes or other labor disputes
against any Group Member pending or, to the knowledge of Holdings or any other
Borrower, threatened that (individually or in the aggregate) could reasonably be
expected to have a Material Adverse Effect. Hours worked by and payment made to
employees of the Group Members have not been in violation of the Fair Labor
Standards Act or any other applicable Requirement of Law dealing with such
matters that (individually or in the aggregate) could reasonably be expected to
have a Material Adverse Effect. All payments due from any Group Member on
account of employee health and welfare insurance that (individually or in the
aggregate) could reasonably be expected to have a Material Adverse Effect if not
paid have been paid or accrued as a liability on the books of the relevant Group
Member.
4.13 ERISA. Neither a Reportable Event nor an "accumulated funding
deficiency" (within the meaning of Section 412 of the Code or Section 302 of
ERISA) has occurred during the five-year period prior to the date on which this
representation is made or deemed made with respect to any Plan, and each Plan
has complied in all respects with the applicable provisions of ERISA and the
Code, where failure to comply with such requirements, singly or in the aggregate
could reasonably be expected to have a Material Adverse Effect. No termination
of a Single Employer Plan resulting in liability under Title IV of ERISA has
occurred, and no Lien in favor of the PBGC or a Plan has arisen, during such
five-year period, and it is not reasonably anticipated that material liability
will be assessed against the Borrowers or any Controlled Group Entity under
Section 4019 of ERISA. The present value of all accrued benefits under each
Single Employer Plan (based on those assumptions used to fund such Plans) did
not, as of the last annual valuation report prior to the date on which this
representation is made or deemed made, exceed the value of the assets of such
Plan allocable to such accrued benefits by a material amount. Neither the
Borrowers nor any Commonly Controlled Entity contributes to, or has contributed
to, any Multiemployer Plan or has had a complete or partial withdrawal from any
Multiemployer Plan which contribution or withdrawal has resulted or could
reasonably be expected to result in a material liability under ERISA, and
neither the Borrowers nor any Commonly Controlled Entity would become subject to
any material liability under ERISA if any Borrower or any such
52
Commonly Controlled Entity were to withdraw completely from all Multiemployer
Plans as of the valuation date most closely preceding the date on which this
representation is made or deemed made. To the knowledge of the Borrowers, no
Multiemployer Plan, for which the Borrowers or any Commonly Controlled Entity
has liability, is in Reorganization or Insolvent.
4.14 Investment Company Act; Other Regulations. No Group Member or
any of its Subsidiaries (i) is a "holding company," or a "subsidiary company" of
a "holding company," or an "affiliate" of a "holding company" or of a
"subsidiary company" of a "holding company," within the meaning of the Public
Utility Holding Company Act of 1935, as amended, (ii) is an "investment
company", or a company "controlled" by an "investment company", within the
meaning of the Investment Company Act of 1940, as amended, or (iii) is subject
to regulations under the Federal Power Act, the Interstate Commerce Act, any
state public utilities code, or any other federal or state statute or regulation
(other than Regulation X of the Board) which limits its ability to incur
Indebtedness or its ability to consummate the transactions contemplated by this
Agreement.
4.15 Subsidiaries. (a) The Subsidiaries listed on Schedule 4.15
constitute all the Subsidiaries of Holdings at the date hereof. Schedule 4.15-1
sets forth as of the Closing Date a diagram indicating the structure of Holdings
and each Subsidiary (including the name of each Subsidiary and, as to each
Subsidiary, the percentage of each class of Capital Stock owned by each Loan
Party) other than Xxxxx LLC and its Subsidiaries. Schedule 4.15-2 sets forth as
of a date reasonably close to the Closing Date a diagram indicating the
structure of Xxxxx LLC and each Subsidiary of Xxxxx LLC (including the name of
each such Subsidiary and, as to each such Subsidiary, the percentage of each
class of Capital Stock owned by each Loan Party). Schedules 4.15-1 and 4.15-2
are accurate and complete as of the Closing Date in all material respects.
(a) As of the Closing Date, there are no outstanding subscriptions,
options, warrants, calls, rights or other agreements or commitments (other than
stock options granted to employees or directors and directors' qualifying
shares) of any nature relating to any Capital Stock of any Group Member, except
as disclosed on Schedule 4.15.
4.16 Use of Proceeds. The proceeds of the Term Loans shall be used
to finance the Merger, to pay related fees and expenses, to refinance loans
outstanding under the Existing Credit Facilities, and to repay Indebtedness owed
by (i) the Group Members and (ii) the Target and its Subsidiaries, with any
remaining proceeds being used for general corporate purposes in the ordinary
course of business. The proceeds of the Revolving Credit Loans and the Swing
Line Loans, and the Letters of Credit, shall be used for general corporate
purposes in the ordinary course of business.
4.17 Environmental Matters. Except as disclosed in Schedule 4.17 and
other than exceptions to any of the following that could not, individually or in
the aggregate, reasonably be expected to have a Material Adverse Effect:
(a) The Group Members: (i) are, and within the period of all
applicable statutes of limitation have been, in compliance with all
applicable Environmental Laws; (ii) hold all Environmental Permits (each
of which is in full force and effect) required for any of their current or
presently planned operations or for any property owned, leased, or
otherwise operated by any of them; (iii) are, and within the period of all
applicable statutes of limitation have been, in compliance with all of
their Environmental Permits; and (iv) have no knowledge indicating that:
any of their Environmental Permits will not be timely renewed and complied
with, without material expense; that any additional Environmental Permits
that may be required of any of them will not be timely obtained and
complied with, without material expense; and compliance with
53
any Environmental Law that is or is expected to become applicable to any
of them will not be timely attained and maintained, without material
expense.
(b) Materials of Environmental Concern other than those present in
retail packaging for sale as consumer products or otherwise present in
customary amounts in connection with the development, construction,
operation, heating and cooling or repair and maintenance activities and in
compliance with all Environmental Laws (all of which is not expected to
result in a Material Adverse Effect), are not present at, on, under, in,
or about any real property now or formerly owned, leased or operated by
any Group Member, or at any other location (including, without limitation,
any location to which Materials of Environmental Concern have been sent
for re-use or recycling or for treatment, storage, or disposal) which
could reasonably be expected to (i) give rise to liability of any Group
Member under any applicable Environmental Law or otherwise result in costs
to any Group Member, or (ii) interfere with any Group Member's continued
operations, or (iii) impair the fair saleable value of any real property
owned or leased any Group Member.
(c) There is no judicial, administrative, or arbitral proceeding
(including any notice of violation or alleged violation) (i) under or
relating to any Environmental Law, (ii) relating to any Remedial Action or
(iii) relating to any claims or liabilities arising from the Release or
threatened Release of a Contaminant into the environment, in each case to
which any Group Member is, or to the knowledge of Holdings or any other
Borrower will be, named as a party that is pending or, to the knowledge of
Holdings or any other Borrower, threatened.
(d) No Group Member has received any written request for information
pursuant, or relating, to any Environmental Law, or been notified that it
is a potentially responsible party under or relating to the federal
Comprehensive Environmental Response, Compensation, and Liability Act or
any similar Environmental Law, or with respect to any Materials of
Environmental Concern.
(e) No Group Member has entered into or agreed to any consent
decree, order, or settlement or other agreement, or is subject to any
judgment, decree, or order or other agreement, in any judicial,
administrative, arbitral, or other forum for dispute resolution, relating
to compliance with or liability under any Environmental Law.
(f) No Group Member has assumed or retained, by contract, any
liabilities of any kind, fixed or contingent, known or unknown, under any
Environmental Law or with respect to any Material of Environmental
Concern.
(g) No Group Member's present or, to the knowledge of Holdings or
any other Borrower, past Property presently is listed or proposed for
listing on the National Priorities List ("NPL") pursuant to CERCLA or on
the Comprehensive Environmental Response Compensation Liability
Information System List ("CERCLIS") or any similar state list of sites
requiring Remedial Action.
(h) To Holdings' knowledge, no Group Member has sent or directly
arranged for the transport of any waste to any site listed or proposed for
listing on the NPL, CERCLIS or any similar state list.
(i) No Environmental Lien is presently recorded with respect to any
Property of any Group Member.
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4.18 Accuracy of Information, etc. No statement or information
contained in this Agreement, any other Loan Document, the Confidential
Information Memorandum or any other document, certificate or statement furnished
to the Administrative Agent or the Lenders or any of them, by or on behalf of
any Loan Party for use in connection with the transactions contemplated by this
Agreement or the other Loan Documents, taken as a whole, contained as of the
date such statement, information, document or certificate was so furnished (or,
in the case of the Confidential Information Memorandum, as of the date of this
Agreement), any untrue statement of a material fact or omitted to state a
material fact necessary to make the statements contained herein or therein not
misleading. The projections and pro forma financial information contained in the
materials referenced above are based upon good faith estimates and assumptions
believed by management of Holdings and the other Borrowers providing such
information to be reasonable at the time made, it being recognized by the
Lenders that such financial information as it relates to future events is not to
be viewed as fact and that actual results during the period or periods covered
by such financial information may differ from the projected results set forth
therein by a material amount. As of the date hereof, the representations and
warranties contained in the Merger Documentation made by a Loan Party are true
and correct in all material respects.
4.19 Security Documents. The Guarantee and Pledge Agreement is
effective to create in favor of the Administrative Agent, for the benefit of the
Lenders, a legal, valid and enforceable security interest in the Collateral
described therein and proceeds thereof. In the case of the Pledged Equity
described in the Guarantee and Pledge Agreement, when any stock certificates
representing such Pledged Equity are delivered to the Administrative Agent, and
in the case of the other Collateral described in the Guarantee and Pledge
Agreement, when financing statements in appropriate form are filed in the
offices specified on Schedule 4.19 (which financing statements have been duly
completed and delivered to the Administrative Agent), the Guarantee and Pledge
Agreement shall constitute a fully perfected Lien on, and security interest in,
all right, title and interest of the Loan Parties in such Collateral and the
proceeds thereof, as security for the Obligations (as defined in the Guarantee
and Pledge Agreement), in each case prior and superior in right to any other
Person (except, in the case of Collateral other than Pledged Equity, Liens
permitted by Section 7.3).
4.20 Solvency. Each Loan Party is, and immediately after giving
effect to the Merger and the incurrence of all Indebtedness and obligations
being incurred in connection herewith and therewith will be, Solvent.
4.21 Certain Documents. Holdings or the other Borrowers have
delivered to the Administrative Agent a complete and correct copy of the Merger
Documentation, the Existing Debt Instruments (other than the LaSalle Letter of
Credit Facility and the M&T Letter of Credit Facility), the Borrower Partnership
Agreement and the Borrower Operating Agreement, including any amendments,
supplements or modifications with respect to any of the foregoing.
4.22 REIT Status. Holdings qualifies as a REIT under the Code.
SECTION 5. CONDITIONS PRECEDENT
5.1 Conditions to Initial Extension of Credit. The amendment and
restatement of the Existing Credit Agreement hereby and the agreement of each
Lender to make the initial extension of credit requested to be made by it
hereunder are each subject to the satisfaction, prior to or concurrently with
the making of such extension of credit on the Closing Date, of the following
conditions precedent:
(a) Loan Documents. The Administrative Agent shall have received (i)
this Agreement, executed and delivered by a duly authorized officer of
Holdings and each Borrower, (ii) the Guarantee and Pledge Agreement,
executed and delivered by a duly authorized officer of
55
Holdings, the Partnership and Xxxxx LLC, (iii) the Control Agreement,
executed and delivered by a duly authorized officer of the Partnership and
(iv) a Lender Addendum executed and delivered by each Lender and accepted
by the Borrowers.
(b) Merger, etc. The following transactions shall have been
consummated:
(i) The Merger shall have been consummated in accordance with
the terms of the Merger Agreement, and no provision of the Merger
Agreement shall have been waived, amended, supplemented or otherwise
modified in a manner that would reasonably be expected to be
materially adverse to the Lenders;
(ii) The capital structure of each Loan Party after the Merger
shall be as described in the Merger Agreement; and
(iii) Holdings shall have received at least $500,000,000 in
cash from the net proceeds of common equity issued by Holdings
pursuant to a warrants offering.
(c) Pro Forma Balance Sheet; Financial Statements. (i) The Lenders
shall have received (x) the Pro Forma Balance Sheet, (y) audited
consolidated financial statements of Holdings and its consolidated
Subsidiaries for the 2002 and 2003 fiscal years and (z) unaudited interim
consolidated financial statements of Holdings and its consolidated
Subsidiaries for each quarterly period ended subsequent to the date of the
latest applicable financial statements delivered pursuant to clause (y) of
this paragraph as to which such financial statements are available.
(ii) The Lenders shall have received (x) audited consolidated
financial statements of the Target and its consolidated Subsidiaries for
the 2002 and 2003 fiscal years and (y) unaudited interim consolidated
financial statements of the Target and its consolidated Subsidiaries for
each quarterly period ended subsequent to the date of the latest
applicable financial statements delivered pursuant to clause (x) of this
paragraph as to which such financial statements are available.
(d) Approvals. All governmental and third party approvals (other
than those listed on Schedule 4.4) necessary in connection with the
Merger, the continuing operations of the Group Members and the
transactions contemplated hereby shall have been obtained and be in full
force and effect, and all applicable waiting periods shall have expired
without any action being taken or threatened by any competent authority
that would restrain, prevent or otherwise impose material adverse
conditions on the Merger or the financing contemplated hereby.
(e) Related Agreements. The Administrative Agent shall have received
true and correct copies, certified as to authenticity by Holdings, of (i)
the Merger Agreement, (ii) the Existing Debt Instruments and (iii) such
other documents or instruments as may be reasonably requested by the
Administrative Agent, including, without limitation, a copy of any debt
instrument or security agreement to which the Loan Parties may be a party.
(f) Termination of Existing Credit Facilities. The Existing Credit
Facilities shall have been, or shall, simultaneously with the making of
Loans on the Closing Date, be terminated (or, in the case of the Existing
Credit Agreement, restated hereby), all amounts thereunder shall have
been, or shall, simultaneously with the making of Loans on the Closing
Date, be paid in full, and evidence of the foregoing shall have been
delivered to the Administrative Agent.
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(g) Fees. The Lenders and the Administrative Agent shall have
received all fees required to be paid, and all expenses for which invoices
have been presented (including reasonable fees, disbursements and other
charges of counsel to the Agents), on or before the Closing Date. All such
amounts will be paid with proceeds of Loans made on the Closing Date and
will be reflected in the funding instructions given by the Borrowers to
the Administrative Agent on or before the Closing Date.
(h) Business Plan. The Lenders shall have received a business plan
for fiscal years 2004-2008 and a written analysis of the business and
prospects of the Group Members for the period from the Closing Date
through November 12, 2008, which shall be based upon assumptions believed
by management to be reasonable (it being understood that actual results
may differ from projected results).
(i) Solvency Analysis. The Lenders shall have received a reasonably
satisfactory solvency analysis certificate from the chief financial
officer of Holdings which shall document the solvency of the Group Members
considered as a whole after giving effect to the transactions contemplated
hereby.
(j) Lien Searches. The Administrative Agent shall have received the
results of a recent lien search in each of the jurisdictions in which
Uniform Commercial Code financing statements or other filings or
recordations should be made to evidence or perfect security interests in
all intangible assets of the Partnership and Xxxxx LLC, and such search
shall reveal no liens on any of the assets of the Loan Party, except for
Liens permitted by Section 7.3.
(k) Expenses. The Administrative Agent shall have received evidence
that the fees and expenses to be incurred in connection with the Merger
and the financing thereof shall not exceed $500,000,000.
(l) Closing Certificate. The Administrative Agent shall have
received a certificate of each Loan Party, dated the Closing Date,
substantially in the form of Exhibit C, with appropriate insertions and
attachments.
(m) Legal Opinions. The Administrative Agent shall have received the
following executed legal opinions:
(i) the legal opinion of Xxxxxxxx & Xxxxxxxx LLP, counsel to
the Borrowers, substantially in the form of Exhibit E-1; and
(ii) the legal opinion of Xxxx, Gerber & Xxxxxxxxx LLP,
counsel to the Borrowers and their Subsidiaries, substantially in
the form of Exhibit E-2.
(n) Pledged Equity; Stock Powers; Acknowledgment and Consent. The
Administrative Agent shall have received (i) the certificates representing
the shares of Capital Stock pledged pursuant to the Guarantee and Pledge
Agreement, together with an undated stock power for each such certificate
executed in blank by a duly authorized officer of the pledgor thereof and
(ii) an Acknowledgment and Consent, substantially in the form of Annex II
to the Guarantee and Pledge Agreement, duly executed by any issuer of
Capital Stock pledged pursuant to the Guarantee and Pledge Agreement that
is not itself a party to the Guarantee and Pledge Agreement.
(o) Filings, Registrations and Recordings. Each document (including,
without limitation, any Uniform Commercial Code financing statement)
required by the Security Documents or
57
under law or reasonably requested by the Administrative Agent to be filed,
registered or recorded in order to create in favor of the Administrative
Agent, for the benefit of the Lenders, a perfected Lien on the Collateral
described therein, prior and superior in right to any other Person (other
than with respect to Liens expressly permitted by Section 7.3), shall have
been filed, registered or recorded or shall have been delivered to the
Administrative Agent be in proper form for filing, registration or
recordation.
(p) Compliance Certificate. The Lenders shall have received a
satisfactory certificate and analysis of the chief financial officer of
Holdings which shall document covenant compliance under this Agreement,
the other Loan Documents and the Existing Debt Instruments after giving
effect to the Merger and the other transactions contemplated hereby.
(q) PATRIOT Act. The Lenders shall have received, sufficiently in
advance of the Closing Date, all documentation and other information
required by bank regulatory authorities under applicable "know your
customer" and anti-money laundering rules and regulations, including
without limitation the United States PATRIOT Act.
5.2 Conditions to Each Extension of Credit. The agreement of each
Lender to make any extension of credit requested to be made by it hereunder on
any date (including, without limitation, its initial extension of credit) is
subject to the satisfaction of the following conditions precedent:
(a) Representations and Warranties. Each of the representations and
warranties made by any Loan Party in or pursuant to the Loan Documents
shall be true and correct on and as of such date as if made on and as of
such date (except for representations and warranties expressly stated to
relate to a specific earlier date, in which case such representations and
warranties shall be true and correct as of such earlier date).
(b) No Default. No Default or Event of Default shall have occurred
and be continuing on such date or after giving effect to the extensions of
credit requested to be made on such date.
Each borrowing by and issuance of a Letter of Credit on behalf of
any Borrower hereunder shall constitute a representation and warranty by such
Borrower as of the date of such extension of credit that the conditions
contained in this Section 5.2 have been satisfied.
SECTION 6. AFFIRMATIVE COVENANTS
Holdings, the Partnership and the Company hereby agree (which
agreement, in the case of the Company, shall be limited to itself and its
Subsidiaries) that, so long as the Commitments remain in effect, any Letter of
Credit remains outstanding or any Loan or other amount is owing to any Lender or
any Agent hereunder, each of Holdings, the Partnership and the Company shall and
shall cause each of its Subsidiaries to:
6.1 Financial Statements. Furnish to the Administrative Agent (for
distribution to the Lenders):
(a) as soon as available, but in any event within 90 days after the
end of each fiscal year of Holdings, a copy of the audited consolidated
balance sheet of Holdings and its consolidated Subsidiaries as at the end
of such year and the related audited consolidated statements of income and
of cash flows for such year, setting forth in each case in comparative
form the figures as of the end of and for the previous year, reported on
without a "going concern" or like qualification or exception, or
qualification arising out of the scope of the audit, or other material
qualification
58
or exception, by Deloitte & Touche LLP or other independent certified
public accountants of nationally recognized standing;
(b) as soon as available, but in any event within 90 days after the
end of each fiscal year of the Partnership, a copy of the unaudited
consolidated balance sheet of the Partnership and, if requested by the
Administrative Agent, the Company and its or their respective consolidated
Subsidiaries, as applicable, as at the end of such year and the related
unaudited consolidated statements of income and of cash flows for such
year, setting forth in each case in comparative form the figures as of the
end of and for the previous year;
(c) as soon as available, but in any event not later than 60 days
after the end of each of the first three quarterly periods of each fiscal
year of Holdings, the unaudited consolidated balance sheet of Holdings and
its consolidated Subsidiaries as at the end of such quarter and the
related unaudited consolidated statements of income and of cash flows for
such quarter and the portion of the fiscal year through the end of such
quarter, setting forth in each case in comparative form the figures as of
the end of and for the corresponding period in the previous year,
certified by a Responsible Officer as being fairly stated in all material
respects (subject to normal year-end audit adjustments); and
(d) as soon as available, but in any event not later than 60 days
after the end of each of the first three quarterly periods of each fiscal
year of the Partnership, the unaudited consolidated balance sheet of the
Partnership and, if requested by the Administrative Agent, the Company and
its or their respective consolidated Subsidiaries, as applicable, as at
the end of such quarter and the related unaudited consolidated statements
of income and of cash flows for such quarter and the portion of the fiscal
year through the end of such quarter, setting forth in each case in
comparative form the figures as of the end of and for the corresponding
period in the previous year, certified by a Responsible Officer as being
fairly stated in all material respects (subject to normal year end audit
adjustments);
all such financial statements to be complete and correct in all material
respects and to be prepared in reasonable detail and in accordance with GAAP
applied consistently throughout the periods reflected therein and with prior
periods (except as approved by such accountants or officer, as the case may be,
and disclosed therein).
6.2 Certificates; Other Information. Furnish to the Administrative
Agent (for distribution to the Lenders), or, in the case of clause (f), to the
relevant Lender:
(a) concurrently with the delivery of the financial statements
referred to in Sections 6.1(a), if requested by the Administrative Agent
or the Required Lenders, a certificate of a Responsible Officer setting
forth, representing and certifying a statement of net operating income and
schedule of tenant sales and occupancy with respect to each Real Property;
(b) concurrently with the delivery of any financial statements
pursuant to Section 6.1, (i) a certificate of a Responsible Officer
stating that, to the best of such Responsible Officer's knowledge, each
Loan Party during such period has observed or performed all of its
covenants and other agreements, and satisfied every condition that is then
required to be satisfied by it, contained in this Agreement and the other
Loan Documents to which it is a party to be observed, performed or
satisfied by it, and that such Responsible Officer has obtained no
knowledge of any Default or Event of Default or mandatory prepayment event
as described in Section 2.12 hereof except as specified in such
certificate and (ii) in the case of quarterly or annual financial
statements, (x) a Compliance Certificate containing all information
(including a schedule of
59
Combined EBITDA) and calculations necessary for calculating the Leverage
Ratio for purposes of determining the Applicable Margin and for
determining compliance by the Group Members with the provisions of this
Agreement (including, without limitation, Sections 7.1 and 7.2) referred
to therein as of the last day of the fiscal quarter or fiscal year of
Holdings, and (y) a schedule of each bankruptcy or cessation of operations
of any tenant to which greater than 5% of any Group Member's share of
consolidated minimum rent is attributable, of which bankruptcy or
cessation of operations Holdings or any other Borrower obtained knowledge
since the last date on which such a schedule was submitted;
(c) no later than 10 Business Days (or such shorter period of time
as may be agreed by the Administrative Agent) prior to the effectiveness
thereof, copies of substantially final drafts of any proposed material
amendment, supplement, waiver or other modification with respect to any
Existing Debt Instrument (except the LaSalle Letter of Credit Facility and
the M&T Letter of Credit Facility);
(d) within five days after the same are sent, copies of all
financial statements, reports and certificates, including, without
limitation, any certificates demonstrating covenant compliance under any
applicable document, that any Group Member sends to the holders (or a
trustee or agent on behalf of the holders) of any class of its public debt
securities and, within five days after the same are filed, copies of all
financial statements and reports that any Group Member may make to, or
file with, the SEC unless, in each case, such statement, report or
certificate is made publicly available by such Group Member;
(e) as soon as practicable, and in any event within 90 days after
the end of each fiscal year of Holdings, Holdings shall deliver a written
report, in form reasonably satisfactory to the Administrative Agent, of
all bankruptcy proceedings filed by or against, or the cessation of
business or operations of, any tenant of any of the Real Properties of any
Subsidiary, the base rent payments of which tenant account for more than
5% of such Subsidiary's share of consolidated minimum rent in the Real
Properties in the aggregate; and
(f) reasonably promptly, such additional financial and other
information as any Lender may from time to time reasonably request.
6.3 Conduct of Business and Maintenance of Existence; Compliance.
(a) (i) Preserve, renew and keep in full force and effect its organizational
existence and (ii) take all reasonable action to maintain all rights, privileges
and franchises necessary or desirable in the normal conduct of its business,
except, in each case, as otherwise permitted by Section 7.4 and except, in the
case of clause (ii) above, to the extent that failure to do so could not
reasonably be expected to have a Material Adverse Effect; and (b) comply with
all Contractual Obligations and Requirements of Law, except to the extent that
failure to comply therewith could not, in the aggregate, reasonably be expected
to have a Material Adverse Effect.
6.4 Maintenance of Property; Insurance. (a) Keep all Property and
systems useful and necessary in its business in good working order and
condition, ordinary wear and tear excepted and (b) maintain with financially
sound and reputable insurance companies insurance on all its Property in at
least such amounts and against at least such risks (but including in any event
public liability, product liability and business interruption) as are usually
insured against in the same general area by companies engaged in the same or a
similar business. Without any limitation on the foregoing, Holdings shall cause
its Subsidiaries to maintain the Real Property in a manner such that each Real
Property can be used in the manner and substantially for the purposes such Real
Property is used on the Closing Date, including,
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without limitation, maintaining all utilities, access rights, zoning and
necessary Permits for such Real Property.
6.5 Inspection of Property; Books and Records; Discussions. (a) Keep
in all material respects proper books of records and account in which full, true
and correct entries in conformity with GAAP and all Requirements of Law shall be
made of all dealings and transactions in relation to its business and activities
and (b) permit representatives of any Lender to visit and inspect any of its
properties and examine and make abstracts from any of its books and records at
any reasonable time and as often as may reasonably be desired and to discuss the
business, operations, properties and financial and other condition of the Group
Members with officers and employees of the Group Members and with their
independent certified public accountants.
6.6 Notices. Promptly upon obtaining knowledge thereof give notice
to the Administrative Agent of:
(a) the occurrence of any Default or Event of Default;
(b) any (i) default or event of default under any Contractual
Obligation of any Group Member or (ii) litigation, investigation or
proceeding affecting any Group Member that, in either case, could
reasonably be expected to have a Material Adverse Effect;
(c) any litigation or proceeding affecting any Group Member which
relates to any Loan Document;
(d) the following events, as soon as possible and in any event
within 30 days after any Borrower knows thereof: (i) the occurrence of any
Reportable Event with respect to any Plan, a failure to make any required
contribution to a Plan, the creation of any Lien in favor of the PBGC or a
Plan, in each case so as to be reasonably likely that any Borrower or any
Commonly Controlled Entity could incur any material liability to the PBGC
or under Title IV of ERISA, or when circumstances otherwise exist which
could reasonably be expected to result in the Borrower or any Commonly
Controlled Entity incurring any such material liability or (ii) the
institution of proceedings or the taking of any other action by the PBGC
or such Borrower or any Commonly Controlled Entity with respect to the
withdrawal from, or the termination, of, any Plan in respect of which the
Borrowers or any Commonly Controlled Entity could incur material
liability; and
(e) any development or event that has had or could reasonably be
expected to have a Material Adverse Effect.
Each notice pursuant to this Section shall be accompanied by a statement of a
Responsible Officer setting forth details of the occurrence referred to therein
and stating what action the relevant Group Member proposes to take with respect
thereto.
6.7 Environmental Laws. Except as could not reasonably be expected,
individually or in the aggregate, to have a Material Adverse Effect: (a) Comply
in all material respects with, and ensure compliance in all material respects by
all tenants and subtenants, if any, with, all applicable Environmental Laws, and
obtain and comply in all material respects with and maintain, and ensure that
all tenants and subtenants obtain and comply in all material respects with and
maintain, any and all licenses, approvals, notifications, registrations or
permits required by applicable Environmental Laws.
(b) Conduct and complete all investigations, studies, sampling and
testing, and all remedial, removal and other actions required under
Environmental Laws and promptly comply in all
61
material respects with all lawful orders and directives of all Governmental
Authorities regarding Environmental Laws.
6.8 Interest Rate Protection. Within 60 days after the Closing Date,
enter into, and thereafter maintain, Hedge Agreements to the extent necessary to
provide that at least 55% (or, after the first anniversary of the Closing Date,
60%) of the aggregate principal amount of the sum of (a) all Indebtedness of the
Group Members and (b) all Indebtedness of Minority Holdings allocable in
accordance with GAAP to Holdings or any Consolidated Entity is subject to either
a fixed interest rate or interest rate protection, which Hedge Agreements shall
have terms and conditions, and be with counterparties, reasonably satisfactory
to the Administrative Agent.
6.9 Further Assurances. From time to time execute and deliver, or
cause to be executed and delivered, such additional instruments, certificates or
documents, and take such actions, as the Administrative Agent may reasonably
request for the purposes of implementing or effectuating the provisions of this
Agreement and the other Loan Documents, or of more fully perfecting or renewing
the rights of the Administrative Agent and the Lenders with respect to the
Collateral (or with respect to any additions thereto or replacements or proceeds
thereof or with respect to any other property or assets hereafter acquired by
any Group Member which may be deemed to be part of the Collateral) pursuant
hereto or thereto. Upon the exercise by the Administrative Agent or any Lender
of any power, right, privilege or remedy pursuant to this Agreement or the other
Loan Documents which requires any consent, approval, recording, qualification or
authorization of any Governmental Authority, Holdings and the other Borrowers
will execute and deliver, or will cause the execution and delivery of, all
applications, certifications, instruments and other documents and papers that
the Administrative Agent or such Lender may be required to obtain from any Group
Member for such governmental consent, approval, recording, qualification or
authorization.
6.10 Subsidiary Distributions. Cause the Target and its Subsidiaries
and any Minority Holdings owned (directly or indirectly) by the Partnership to
dividend or otherwise distribute all of its cash (other than cash necessary to
conduct its normal business and operations) to the Partnership (the
"Distributions"), subject to, in the case of any Limited Minority Holdings,
contractual or other legal restrictions prohibiting or limiting the ability of
any Group Member to cause such dividend or distribution. The Distributions made
by the Target or its Subsidiaries shall be deposited into the Deposit Account
(as defined in the Control Agreement); provided, that the parties hereto
acknowledge and agree that, unless an Event of Default shall have occurred and
be continuing, (i) no Person shall deliver a Control Notice (as defined in the
Control Agreement) with respect thereto and (ii) the relevant Borrower shall
have the right to make withdrawals therefrom.
6.11 Appraisals. On or before February 28, 2005, furnish to the
Administrative Agent an updated appraisal of each Community Development Property
by Xxxxxxxx Associates, Inc. which shall be reasonably satisfactory to the
Administrative Agent (it being understood that the Borrowers shall use
commercially reasonable efforts to furnish such appraisals as soon as
practicable).
6.12 Consents. Use commercially reasonable best efforts to obtain
the consents listed on Schedule 4.4 as soon as practicable.
6.13 Pledges. Within 10 days after the Closing Date (or such longer
period of time as may be agreed by the Administrative Agent), provide for the
pledge of the common units of the Company not directly owned by the Partnership
in a manner satisfactory to the Administrative Agent (it being understood that
as of the Closing Date such common units equal approximately 8% of the aggregate
issued and outstanding common units of the Company).
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SECTION 7. NEGATIVE COVENANTS
Holdings, the Partnership and the Company hereby agree (which
agreement, in the case of the Company, shall be limited to itself and its
Subsidiaries) that, so long as the Commitments remain in effect, any Letter of
Credit remains outstanding or any Loan or other amount is owing to any Lender or
any Agent hereunder, each of Holdings, the Partnership and the Company shall
not, and shall not permit any of its Subsidiaries to, directly or indirectly:
7.1 Financial Condition Covenants.
(a) Permit the Fixed Charge Coverage Ratio as of the last day of any
period of four consecutive fiscal quarters of Holdings (or, if less, the
number of full fiscal quarters subsequent to the Closing Date) to be less
than 1.40 to 1.00; and
(b) Permit the Combined Equity Value at any time to be less than
$5,000,000,000.
7.2 Limitation on Indebtedness. Create, incur, assume or suffer to
exist any Indebtedness, except Indebtedness which (i) has a maturity date no
earlier than six months following the maturity date of the Tranche B Term Loans
(other than Secured Mortgage Indebtedness and Construction Related Indebtedness)
and (ii) when aggregated with Indebtedness of the Group Members and Indebtedness
of Minority Holdings allocable in accordance with GAAP to Holdings or any
Consolidated Entity as of the time of determination, would not cause Total
Adjusted Outstanding Indebtedness at any time during the period set forth below
to exceed the percentage of the Capitalization Value set forth below opposite
such period:
Period % of Capitalization Value
------ -------------------------
Closing Date - June 29, 2006 75%
June 30, 2006 - June 29, 2007 70%
June 30, 2007 and thereafter 65%
; provided, however, that in addition to the above:
(i) the aggregate outstanding principal amount of any unsecured
Indebtedness of (x) all Consolidated Entities shall not exceed $25,000,000
at any one time and (y) all Minority Holdings shall not exceed
$100,000,000 at any one time, in each case other than such unsecured
Indebtedness outstanding on the date hereof and listed on Schedule 7.2 and
any refinancings thereof (provided such refinancing does not increase the
principal amount thereof or shorten the maturity thereof); and
(ii) the aggregate outstanding principal amount of any Recourse
Secured Mortgage Indebtedness shall not exceed 7.5% of the Capitalization
Value at any one time.
7.3 Limitation on Liens. Create, incur, assume or suffer to exist
any Lien upon any of its Property, whether now owned or hereafter acquired,
except for:
63
(a) Liens for taxes, assessments or utility or governmental charges
that are not yet due and payable or that are being contested in good faith
by appropriate proceedings, provided that adequate reserves with respect
thereto are maintained on the books of a Group Member in conformity with
GAAP;
(b) statutory Liens of landlords or Equipment lessors against any
Property of any Group Member, carriers', warehousemen's, mechanics',
materialmen's, repairmen's or other like Liens arising in the ordinary
course of business that are not overdue for a period of more than 30 days
or that are being contested in good faith by appropriate proceedings or
that are for amounts which, if not resolved in favor of the applicable
Group Member would not be likely, individually or in the aggregate
together with all other such Liens, to result in a Material Adverse
Effect;
(c) pledges or deposits in connection with workers' compensation,
unemployment insurance and other social security legislation;
(d) deposits to secure the performance of bids, trade contracts
(other than for borrowed money), leases, statutory obligations, surety and
appeal bonds, performance bonds and other obligations of a like nature
incurred in the ordinary course of business;
(e) easements, rights-of-way, restrictions and other similar
encumbrances incurred in the ordinary course of business that, in the
aggregate, are not substantial in amount and that do not in any case
materially detract from the value of the Property subject thereto or
materially interfere with the ordinary conduct of the business of any
Group Member;
(f) Liens with respect to Capital Leases of Equipment entered into
in the ordinary course of business of the Group Members pursuant to which
the aggregate Indebtedness under such Capital Leases does not exceed
$50,000,000 for any Real Property;
(g) Liens created pursuant to the Security Documents;
(h) Liens securing permitted Secured Mortgage Indebtedness; provided
that such Indebtedness constitutes Non-Recourse Indebtedness;
(i) Liens securing permitted Recourse Secured Mortgage Indebtedness,
provided that (i) such Liens shall be created substantially simultaneously
with the incurrence of such Indebtedness and (ii) such Liens do not at any
time encumber any Property other than the Property financed by such
Indebtedness; and
(j) Liens to secure capital contributions arising in favor of the
holders of equity interests in entities which are Minority Holdings
pursuant to the terms of the applicable partnership, joint venture,
operating, shareholders or similar agreement between such holders and any
Group Member, provided that such Liens do not at any time encumber any
Property other than such equity interests.
7.4 Limitation on Fundamental Changes. Enter into any merger,
consolidation or amalgamation, or liquidate, wind up or dissolve itself (or
suffer any liquidation or dissolution), or Dispose of all or substantially all
of its Property or business, except that:
(a) any Subsidiary of Holdings (other than the Partnership or the
Company) may be merged or consolidated with or into any Borrower (provided
that such Borrower shall be the continuing or surviving entity) or with or
into any Wholly Owned Subsidiary of a Borrower
64
(provided that (i) such Wholly Owned Subsidiary shall be the continuing or
surviving entity or (ii) simultaneously with such transaction, the
continuing or surviving entity shall become a Wholly Owned Subsidiary of a
Borrower);
(b) any Subsidiary of Holdings (other than the Partnership or the
Company) may Dispose of any or all of its assets (upon voluntary
liquidation or otherwise) to any Borrower or any Wholly Owned Subsidiary
of a Borrower ; and
(c) the Merger and the related intercompany transactions to be
consummated on the Closing Date may be consummated.
7.5 Limitation on Disposition of Property. Dispose of any of its
Property (including, without limitation, receivables and leasehold interests),
whether now owned or hereafter acquired, or, in the case of any Subsidiary,
issue or sell any shares of such Subsidiary's Capital Stock to any Person,
except:
(a) the Disposition of obsolete or worn out property in the ordinary
course of business;
(b) the sale of inventory in the ordinary course of business;
(c) Dispositions permitted by Section 7.4(b);
(d) the sale or issuance of any Subsidiary's Capital Stock to any
Borrower;
(e) the Disposition of other assets (other than the sale or issuance
of any preferred stock of any Subsidiary), provided that (i) such
Disposition is at fair market value, as reasonably determined by the Group
Member making such Disposition, (ii) such Disposition shall not result in
a Material Adverse Effect and (iii) at the time of such Disposition, a
certificate of a Responsible Officer shall have been delivered to the
Administrative Agent, which shall include (x) a computation demonstrating
pro forma compliance with the covenant contained in Section 7.1 and, if
applicable, Section 7.2 after giving effect to such Disposition and (y) a
certification that no Default or Event of Default shall have occurred and
be continuing at such time or after giving effect to such Disposition; and
(f) the sale or other transfer of the Capital Stock of the Target by
Holdings to the Partnership and Xxxxx LLC and the related intercompany
transactions to be consummated on the Closing Date.
7.6 Limitation on Restricted Payments and Redemption Payments. (a)
Make any Restricted Payment (other than (x) to one or more Group Members or (y)
to the extent reasonably necessary (after utilization of the basket set forth
below) in order for Holdings to remain qualified as a REIT under the Code)
during any fiscal quarter of Holdings, which, when added to all Restricted
Payments made during such fiscal quarter and the three immediately preceding
fiscal quarters of Holdings, exceeds 75% of FFO for Holdings for such four
fiscal quarters; provided that no Default or Event of Default shall have
occurred and be continuing at the time of or after giving effect to such
Restricted Payment. For purposes of this Agreement, "Restricted Payment" means
(i) any dividend or other distribution (whether payable in cash or other
property) on any shares of any Group Member's Capital Stock (except dividends
payable solely in shares of such Capital Stock or in rights to subscribe for or
purchase shares of such Capital Stock) or (ii) any loan payment to any Affiliate
of any Group Member.
65
(b) Make any Redemption Payment (other than to one or more Group
Members) during any fiscal year of Holdings, which, when added to all Redemption
Payments made during such year of Holdings, exceeds $125,000,000 in the
aggregate; provided that (i) no such Redemption Payment shall have, or be
reasonably likely to have, a Material Adverse Effect and (ii) no Default or
Event of Default shall have occurred and be continuing at the time of or after
giving effect to such Redemption Payment. For purposes of this Agreement,
"Redemption Payment" means any payment on account of the purchase, redemption,
retirement or acquisition (including merger consideration) of (i) any shares of
any Group Member's Capital Stock or (ii) any option, warrant or other right to
acquire shares of any Group Member's Capital Stock.
(c) Notwithstanding paragraph (b) of this Section, the Company may
make Redemption Payments with respect to the Xxxxxxx Preferred Stock which do
not exceed $250,000,000 in the aggregate and which are made with the Net Cash
Proceeds of (i) a Mandatory Prepayment Event for which a Reinvestment Notice has
been delivered or (ii) Subordinated Debt; provided that (x) no such payment
shall have, or be reasonably likely to have, a Material Adverse Effect and (y)
no Default or Event of Default shall have occurred and be continuing at the time
of or after giving effect to such payment.
7.7 Limitation on Investments. Make any advance, loan, extension of
credit (by way of guaranty or otherwise) or capital contribution to, or purchase
any Capital Stock, bonds, notes, debentures or other debt securities of, or any
assets constituting an ongoing business from, or make any other investment in,
or purchase any Property from, any other Person (all of the foregoing,
"Investments"), except:
(a) extensions of trade credit in the ordinary course of business;
(b) any Investment reasonably necessary for Holdings to remain
qualified as a REIT;
(c) Investments in Cash Equivalents;
(d) the Merger and the related intercompany transactions to be
consummated on the Closing Date;
(e) Investments by any Group Member in any Borrower or any Person
that, prior to such Investment, is a Wholly Owned Subsidiary of a
Borrower;
(f) Investments received in connection with the bankruptcy or
reorganization of suppliers and lessees and in settlement of delinquent
obligations of, and other disputes with, lessees and suppliers arising in
the ordinary course of business;
(g) Investments in:
(1) any individual Real Property in an aggregate amount (valued at
cost) not to exceed $1,000,000,000;
(2) any single Person owning GGP Property or any portfolio of GGP
Properties (other than any Borrower's investments in GGP-TRS L.L.C.,
Price Development Company, Limited Partnership, the Homart
Portfolio, the Ivanhoe Portfolio and the Target) which do not exceed
20% of the Capitalization Value after giving effect to such
Investments of the Group Members, it being understood that no
Investment in any individual Person will be permitted if Holdings'
and each Borrower's allocable share of
66
the Investment of such Person in any individual GGP Property would
exceed the limitation described in clause (1) above;
(3) Minority Holdings, provided that (i) aggregate Investments in
Limited Minority Holdings shall not exceed 20% of the Capitalization
Value after giving effect to such Investments of the Group Members,
and (ii) such Minority Holdings shall be a Minority Holdings owned
(directly or indirectly) by the Partnership if such Minority
Holdings was not in existence as of the date of this Agreement; and
(4) Real Estate Under Construction which, in the aggregate, does not
exceed 10% of the Capitalization Value after giving effect to such
Investments of the Group Members (provided, however, that, for
purposes of this clause (4) only, the term Real Estate Under
Construction shall not include any Construction Asset which is at
least 80% leased, and provided further that, for purposes of this
clause (4), any portion of a Construction Asset which is under a
binding contract of sale to an "anchor tenant" shall be deemed to be
leased);
(h) Investments held as of the Closing Date and, in the case of
Investments made after June 30, 2004 through the Closing Date, listed on
Schedule 7.8(h);
(i) deposits with financial institutions available for withdrawal on
demand, prepaid expenses, accounts receivable and advances to employees,
in each case, made or incurred in the ordinary course of business and, in
the case of advances to employees;
(j) Investments in the Capital Stock of the Target and Xxxxx LLC;
and
(k) guarantees of Indebtedness and other liabilities and financial
obligations of Affiliates to the extent permitted by Section 7.2.
7.8 Limitation on Transactions with Affiliates. Enter into any
transaction (other than the intercompany transactions to be consummated on the
Closing Date), including, without limitation, any purchase, sale, lease or
exchange of Property, the rendering of any service or the payment of any
management, advisory or similar fees, with any Affiliate (other than Holdings or
any other Borrower) unless such transaction is (a) not prohibited by this
Agreement and (b) upon fair and reasonable terms no less favorable to such Group
Member than it would obtain in a comparable arm's length transaction with a
Person that is not an Affiliate.
7.9 Limitation on Changes in Fiscal Periods. Permit the fiscal year
of Holdings or any other Borrower to end on a day other than December 31 or
change Holdings' or any Borrower's method of determining fiscal quarters.
7.10 Limitation on Restrictions on Subsidiary Distributions. Enter
into or suffer to exist or become effective any consensual encumbrance or
restriction on the ability of any Subsidiary to (a) make Restricted Payments in
respect of any Capital Stock of such Subsidiary held by, or pay any Indebtedness
owed to, Holdings or any other Subsidiary, (b) make Investments in Holdings or
any other Subsidiary or (c) transfer any of its assets to Holdings or any other
Subsidiary, except for such encumbrances or restrictions existing under or by
reason of (i) any restrictions existing under the Loan Documents, (ii) any
restrictions with respect to a Subsidiary imposed pursuant to an agreement that
has been entered into in connection with the Disposition of all or substantially
all of the Capital Stock or assets of such Subsidiary, (iii) any restrictions
under the documentation governing any Secured Mortgage
67
Indebtedness and (iv) any restrictions existing as of the Closing Date under the
Borrower Operating Agreement.
7.11 Limitation on Lines of Business. Enter into any business,
either directly or through any Subsidiary, except for those businesses in which
the Group Members are engaged on the date of this Agreement (after giving effect
to the Merger) or that are reasonably related thereto.
7.12 Limitation on Amendments to Merger Documentation. (a) Amend,
supplement or otherwise modify (pursuant to a waiver or otherwise) the terms and
conditions of the indemnities and licenses furnished to Holdings or any of its
Subsidiaries pursuant to the Merger Documentation such that after giving effect
thereto such indemnities or licenses shall be materially less favorable to the
interests of the Loan Parties or the Lenders with respect thereto or (b)
otherwise amend, supplement or otherwise modify the terms and conditions of the
Merger Documentation except to the extent that any such amendment, supplement or
modification could not reasonably be expected to have a Material Adverse Effect.
7.13 Limitation on Amendments to Other Documents. (a) Amend,
supplement or otherwise modify (pursuant to a waiver or otherwise) the terms and
conditions of the Borrower Partnership Agreement or the Borrower Operating
Agreement in any manner that would increase the amounts payable by the Company
or the Partnership thereunder (except any such amendment that provides for the
authorization of additional units of the Partnership or the Company to the
extent not in violation of the definition of "Change of Control") or (b)
otherwise amend, supplement or otherwise modify the terms and conditions of the
Borrower Partnership Agreement or the Borrower Operating Agreement except to the
extent that any such amendment, supplement or modification could not reasonably
be expected to have a Material Adverse Effect.
7.14 Limitation on Activities of Holdings. In the case of Holdings,
notwithstanding anything to the contrary in this Agreement or any other Loan
Document, (a) conduct, transact or otherwise engage in, or commit to conduct,
transact or otherwise engage in, any business or operations other than those
incidental to its ownership of the Capital Stock of its Subsidiaries (including
guaranteeing obligations of its Subsidiaries in the ordinary course of business
and as may be necessary or desirable for tax reasons, including in order for
Holdings to maintain its status as a REIT under the Code), (b) incur, create,
assume or suffer to exist any Indebtedness or other liabilities or financial
obligations except as permitted under this Agreement, or (c) after giving effect
to the intercompany transactions to be consummated on the Closing Date, own,
lease, manage or otherwise operate any properties or assets (including cash
(other than cash received in connection with dividends made by its Subsidiaries
in accordance with Section 7.6) and cash equivalents) other than the ownership
of shares of Capital Stock of the Partnership.
7.15 Limitation on Hedge Agreements. Enter into any Hedge Agreement
other than Hedge Agreements entered into in the ordinary course of business, and
not for speculative purposes, to protect against changes in interest rates or
foreign exchange rates.
7.16 New Subsidiaries; Certain Dispositions. (a) Create or acquire
any new Subsidiary after the Closing Date unless such new Subsidiary is created
or acquired (i) as a Wholly Owned Subsidiary of the Company or (ii) as a
Minority Holding of the Partnership, in each case unless there are material
adverse legal or accounting impediments to implementing such a structure; or (b)
Dispose of any material asset owned by the Company, the Target or any of their
respective Subsidiaries as of the Closing Date, unless (i) such Disposition is
otherwise permitted hereunder and is for cash consideration at fair market value
and (ii) the Net Cash Proceeds thereof are applied in accordance with Section
2.12.
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SECTION 8. EVENTS OF DEFAULT
If any of the following events shall occur and be continuing:
(a) any Borrower shall fail to pay any principal of any Loan or
Reimbursement Obligation when due in accordance with the terms hereof; or
any Borrower shall fail to pay any interest on any Loan or Reimbursement
Obligation, or any other amount payable hereunder or under any other Loan
Document, within five days after any such interest or other amount becomes
due in accordance with the terms hereof or thereof; or
(b) any representation or warranty made or deemed made by any Loan
Party herein or in any other Loan Document or that is contained in any
certificate, document or financial or other statement furnished by it at
any time under or in connection with this Agreement or any such other Loan
Document shall prove to have been inaccurate in any material respect on or
as of the date made or deemed made or furnished; or
(c) any Loan Party shall default in the observance or performance of
any agreement contained in clause (i) or (ii) of Section 6.3(a) (with
respect to Holdings and any other Borrower only), Section 6.6(a) or
Section 7, or in Section 5 of the Guarantee and Pledge Agreement; or
(d) any Loan Party shall default in the observance or performance of
any other agreement contained in this Agreement or any other Loan Document
(other than as provided in paragraphs (a) through (c) of this Section),
and such default shall continue unremedied for a period of 30 days after a
Responsible Officer of any Loan Party has knowledge thereof; or
(e) any Group Member shall (i) default in making any payment of any
principal of any Indebtedness (including, without limitation, any
Contingent Obligation, but excluding the Loans and Reimbursement
Obligations) on the scheduled or original due date with respect thereto,
subject to the receipt of any applicable notice and the expiration of any
applicable cure period or grace period; or (ii) default in making any
payment of any interest on any such Indebtedness beyond the period of
grace, if any, provided in the instrument or agreement under which such
Indebtedness was created; or (iii) default in the observance or
performance of any other agreement or condition relating to any such
Indebtedness or contained in any instrument or agreement evidencing,
securing or relating thereto, or any other event shall occur or condition
exist, the effect of which default or other event or condition is to
cause, or to permit the holder or beneficiary of such Indebtedness (or a
trustee or agent on behalf of such holder or beneficiary) to cause, with
the giving of notice if required, such Indebtedness to become due prior to
its stated maturity or to become subject to a mandatory offer to purchase
by the obligor thereunder or (in the case of any such Indebtedness
constituting a Contingent Obligation) to become payable; provided, that a
default, event or -------- condition described in clause (i), (ii) or
(iii) of this paragraph (e) shall not at any time constitute an Event of
Default unless, at such time, one or more defaults, events or conditions
of the type described in clauses (i), (ii) and (iii) of this paragraph (e)
shall have occurred and be continuing with respect to Recourse
Indebtedness the outstanding principal amount of which exceeds in the
aggregate $50,000,000 or, in the case of Non-Recourse Indebtedness,
$400,000,000; or
(f) (i) Holdings, any other Borrower or any other Group Member to
which more than $75,000,000 of the Capitalization Value is attributable,
individually or in the aggregate with its Subsidiaries, shall commence any
case, proceeding or other action (A) under any existing or future law of
any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency,
reorganization or relief of debtors, seeking to have an order for relief
entered with respect to it, or
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seeking to adjudicate it a bankrupt or insolvent, or seeking
reorganization, arrangement, adjustment, winding-up, liquidation,
dissolution, composition or other relief with respect to it or its debts,
or (B) seeking appointment of a receiver, trustee, custodian, conservator
or other similar official for it or for all or any substantial part of its
assets, or Holdings, any other Borrower or any other Group Member to which
more than $75,000,000 of the Capitalization Value is attributable,
individually or in the aggregate with its Subsidiaries shall make a
general assignment for the benefit of its creditors; or (ii) there shall
be commenced against Holdings, any other Borrower or any other Group
Member to which more than $75,000,000 of the Capitalization Value is
attributable, individually or in the aggregate with its Subsidiaries, any
case, proceeding or other action of a nature referred to in clause (i)
above that (A) results in the entry of an order for relief or any such
adjudication or appointment or (B) remains undismissed, undischarged or
unbonded for a period of 60 days; or (iii) there shall be commenced
against Holdings, any other Borrower or any other Group Member to which
more than $75,000,000 of the Capitalization Value is attributable,
individually or in the aggregate with its Subsidiaries, any case,
proceeding or other action seeking issuance of a warrant of attachment,
execution, distraint or similar process against all or any substantial
part of its assets that results in the entry of an order for any such
relief that shall not have been vacated, discharged, or stayed or bonded
pending appeal within 60 days from the entry thereof; or (iv) Holdings,
any other Borrower or any other Group Member to which more than
$75,000,000 of the Capitalization Value is attributable, individually or
in the aggregate with its Subsidiaries, shall take any action in
furtherance of, or indicating its consent to, approval of, or acquiescence
in, any of the acts set forth in clause (i), (ii), or (iii) above; or (v)
Holdings, any other Borrower or any other Group Member to which more than
$75,000,000 of the Capitalization Value is attributable, individually or
in the aggregate with its Subsidiaries, shall generally not, or shall be
unable to, or shall admit in writing its inability to, pay its debts as
they become due; or
(g) (i) any Person shall engage in any "prohibited transaction" (as
defined in Section 406 of ERISA or Section 4975 of the Code) involving any
Plan, (ii) any "accumulated funding deficiency" (as defined in Section 302
of ERISA), whether or not waived, shall exist with respect to any Plan, or
any Lien in favor of the PBGC or a Plan shall arise on the assets of any
Borrower or any Commonly Controlled Entity, (iii) a Reportable Event shall
occur with respect to, or proceedings shall commence to have a trustee
appointed, or a trustee shall be appointed, to administer or to terminate,
any Single Employer Plan, which in either event is, in the reasonable
opinion of the Required Lenders, likely to result in the termination of
such Plan for purposes of Title IV of ERISA, (iv) any Single Employer Plan
shall terminate in an involuntary or distress termination for purposes of
Title IV of ERISA, (v) any Borrower or any Commonly Controlled Entity
shall, or in the reasonable opinion of the Required Lenders shall be
likely to, incur any liability in connection with a withdrawal from, or
the Insolvency or Reorganization of, a Multiemployer Plan or (vi) any
other event or condition shall occur or exist with respect to a Plan; and
in each case in clauses (i) through (vi) above, such event or condition,
together with all other such events or conditions, if any, could
reasonably be expected to have a Material Adverse Effect; or
(h) one or more judgments or decrees shall be entered against any
Group Member involving for the Group Members taken as a whole a liability
(not paid or fully covered by insurance as to which the relevant insurance
company has acknowledged coverage) of $50,000,000 or more (or, in the case
of liabilities arising out of Non-Recourse Indebtedness, $400,000,000 or
more), and all such judgments or decrees shall not have been vacated,
discharged, stayed or bonded pending appeal within 60 days from the entry
thereof; or
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(i) any of the Security Documents shall cease, for any reason (other
than by reason of the express release thereof pursuant to Section 10.15),
to be in full force and effect, or any Loan Party or any Subsidiary of any
Loan Party shall so assert, or any Lien created by any of the Security
Documents shall cease to be enforceable and of the same effect and
priority purported to be created thereby, or any Loan Party or any
Subsidiary of any Loan Party shall so assert; or
(j) the guarantee contained in Section 2 of the Guarantee and Pledge
Agreement shall cease, for any reason (other than by reason of the express
release thereof pursuant to Section 10.15), to be in full force and effect
or any Loan Party or any Affiliate of any Loan Party shall so assert; or
(k) any Change of Control shall occur; or
(l) (i) Holdings shall fail to (x) maintain its status as a REIT
under the Code, (y) continue as a general partner of the Partnership or
(z) remain listed on the New York Stock Exchange or other national stock
exchange, (ii) the Partnership shall fail to continue as the managing
member of the Company, or (iii) Holdings or any other Borrower shall fail
to comply in all material respects with all Requirements of Law applicable
to it and its businesses and the GGP Properties, in each case where the
failure to so comply individually or in the aggregate will have or is
reasonably likely to have a Material Adverse Effect; or
(m) (i) the portion of the Capitalization Value attributable to the
aggregate Limited Minority Holdings of the Group Members exceeds 25% of
the Capitalization Value, or (ii) the Management Company ceases to provide
property management and leasing services to at least 75% of the total
number of Real Properties in which the Group Members have an ownership
interest, excluding any such Real Properties that are Limited Minority
Holdings;
then, and in any such event, (A) if such event is an Event of Default specified
in clause (i) or (ii) of paragraph (f) above with respect to Holdings or any
other Borrower, automatically the Commitments shall immediately terminate and
the Loans hereunder (with accrued interest thereon) and all other amounts owing
under this Agreement and the other Loan Documents (including, without
limitation, all amounts of L/C Obligations, whether or not the beneficiaries of
the then outstanding Letters of Credit shall have presented the documents
required thereunder) shall immediately become due and payable, and (B) if such
event is any other Event of Default, either or both of the following actions may
be taken: (i) with the consent of the Majority Revolving Credit Facility
Lenders, the Administrative Agent may, or upon the request of the Majority
Revolving Credit Facility Lenders, the Administrative Agent shall, by notice to
the Borrowers declare the Revolving Credit Commitments to be terminated
forthwith, whereupon the Revolving Credit Commitments shall immediately
terminate; and (ii) with the consent of the Required Lenders, the Administrative
Agent may, or upon the request of the Required Lenders, the Administrative Agent
shall, by notice to the Borrowers, declare the Loans hereunder (with accrued
interest thereon) and all other amounts owing under this Agreement and the other
Loan Documents (including, without limitation, all amounts of L/C Obligations,
whether or not the beneficiaries of the then outstanding Letters of Credit shall
have presented the documents required thereunder) to be due and payable
forthwith, whereupon the same shall immediately become due and payable. In the
case of all Letters of Credit with respect to which presentment for honor shall
not have occurred at the time of an acceleration pursuant to this paragraph, the
Borrowers shall at such time deposit in a cash collateral account opened by the
Administrative Agent an amount equal to the aggregate then undrawn and unexpired
face amount of such Letters of Credit. Amounts held in such cash collateral
account shall be applied by the Administrative Agent to the payment of drafts
drawn under such Letters of Credit, and the unused portion thereof after all
such Letters of Credit shall have expired or been fully drawn upon, if any,
shall be applied to repay other obligations of the Borrowers hereunder and under
the other Loan
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Documents. After all such Letters of Credit shall have expired or been fully
drawn upon, all Reimbursement Obligations shall have been satisfied and all
other obligations of the Borrowers hereunder and under the other Loan Documents
shall have been paid in full, the balance, if any, in such cash collateral
account shall be returned to the Borrowers (or such other Person as may be
lawfully entitled thereto).
SECTION 9. THE AGENTS
9.1 Appointment. Each Lender hereby irrevocably designates and
appoints the Agents as the agents of such Lender under this Agreement and the
other Loan Documents, and each Lender irrevocably authorizes each Agent, in such
capacity, to take such action on its behalf and in such Agent's designated
capacity under the provisions of this Agreement and the other Loan Documents and
to exercise such powers and perform such duties as are expressly delegated to
such Agent by the terms of this Agreement and the other Loan Documents, together
with such other powers as are reasonably incidental thereto. Notwithstanding any
provision to the contrary elsewhere in this Agreement, no Agent shall have any
duties or responsibilities, except those expressly set forth herein, or any
fiduciary relationship with any Lender, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or any other Loan Document or otherwise exist against any Agent.
9.2 Delegation of Duties. Each Agent may execute any of its duties
under this Agreement and the other Loan Documents by or through agents or
attorneys-in-fact and shall be entitled to advice of counsel concerning all
matters pertaining to such duties. No Agent shall be responsible for the
negligence or misconduct of any agents or attorneys-in-fact selected by it with
reasonable care.
9.3 Exculpatory Provisions. Neither any Agent nor any of its
officers, directors, employees, agents, attorneys-in-fact or affiliates shall be
(i) liable for any action lawfully taken or omitted to be taken by it or such
Person or Persons under or in connection with this Agreement or any other Loan
Document (except to the extent that any of the foregoing are found by a final
and nonappealable decision of a court of competent jurisdiction to have resulted
from its or such Person or Persons' own gross negligence or willful misconduct)
or (ii) responsible in any manner to any of the Lenders for any recitals,
statements, representations or warranties made by any Loan Party or any officer
thereof contained in this Agreement or any other Loan Document or in any
certificate, report, statement or other document referred to or provided for in,
or received by the Agents under or in connection with, this Agreement or any
other Loan Document or for the value, validity, effectiveness, genuineness,
enforceability or sufficiency of this Agreement or any other Loan Document or
for any failure of any Loan Party to perform its obligations hereunder or
thereunder. The Agents shall not be under any obligation to any Lender to
ascertain or to inquire as to the observance or performance of any of the
agreements contained in, or conditions of, this Agreement or any other Loan
Document, or to inspect the properties, books or records of any Loan Party.
9.4 Reliance by Agents. Each Agent shall be entitled to rely, and
shall be fully protected in relying, upon any instrument, writing, resolution,
notice, consent, certificate, affidavit, letter, telecopy, telex or teletype
message, statement, order or other document or conversation believed by it to be
genuine and correct and to have been signed, sent or made by the proper Person
or Persons and upon advice and statements of legal counsel (including, without
limitation, counsel to the Loan Parties), independent accountants and other
experts selected by such Agent. The Agents may deem and treat the payee of any
Note as the owner thereof for all purposes unless such Note shall have been
transferred in accordance with Section 10.6 and all actions required by such
Section in connection with such transfer shall have been taken. Each Agent shall
be fully justified in failing or refusing to take any action under this
Agreement or any other Loan Document unless it shall first receive such advice
or concurrence of the Required Lenders (or, if so specified by this Agreement,
all Lenders or any other instructing group of
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Lenders specified by this Agreement) as it deems appropriate or it shall first
be indemnified to its satisfaction by the Lenders against any and all liability
and expense that may be incurred by it by reason of taking or continuing to take
any such action. Each Agent shall in all cases be fully protected in acting, or
in refraining from acting, under this Agreement and the other Loan Documents in
accordance with a request of the Required Lenders (or, if so specified by this
Agreement, all Lenders or any other instructing group of Lenders specified by
this Agreement), and such request and any action taken or failure to act
pursuant thereto shall be binding upon all the Lenders and all future holders of
the Loans.
9.5 Notice of Default. No Agent shall be deemed to have knowledge or
notice of the occurrence of any Default or Event of Default hereunder unless
such Agent shall have received notice from a Lender, Holdings or any other
Borrower referring to this Agreement, describing such Default or Event of
Default and stating that such notice is a "notice of default". In the event that
the Administrative Agent shall receive such a notice, the Administrative Agent
shall give notice thereof to the Lenders. The Administrative Agent shall take
such action with respect to such Default or Event of Default as shall be
reasonably directed by the Required Lenders (or, if so specified by this
Agreement, all Lenders or any other instructing group of Lenders specified by
this Agreement); provided that unless and until the Administrative Agent shall
have received such directions, the Administrative Agent may (but shall not be
obligated to) take such action, or refrain from taking such action, with respect
to such Default or Event of Default as it shall deem advisable in the best
interests of the Lenders.
9.6 Non-Reliance on Agents and Other Lenders. Each Lender expressly
acknowledges that neither any of the Agents nor any of their respective
officers, directors, employees, agents, attorneys-in-fact or affiliates have
made any representations or warranties to it and that no act by any Agent
hereafter taken, including any review of the affairs of a Loan Party or any
affiliate of a Loan Party, shall be deemed to constitute any representation or
warranty by any Agent to any Lender. Each Lender represents to the Agents that
it has, independently and without reliance upon any Agent or any other Lender,
and based on such documents and information as it has deemed appropriate, made
its own appraisal of and investigation into the business, operations, property,
financial and other condition and creditworthiness of the Loan Parties and their
affiliates and made its own decision to make its Loans hereunder and enter into
this Agreement. Each Lender also represents that it will, independently and
without reliance upon any Agent or any other Lender, and based on such documents
and information as it shall deem appropriate at the time, continue to make its
own credit analysis, appraisals and decisions in taking or not taking action
under this Agreement and the other Loan Documents, and to make such
investigation as it deems necessary to inform itself as to the business,
operations, property, financial and other condition and creditworthiness of the
Loan Parties and their affiliates. Except for notices, reports and other
documents expressly required to be furnished to the Lenders by the
Administrative Agent hereunder, no Agent shall have any duty or responsibility
to provide any Lender with any credit or other information concerning the
business, operations, property, condition (financial or otherwise), prospects or
creditworthiness of any Loan Party or any affiliate of a Loan Party that may
come into the possession of such Agent or any of its officers, directors,
employees, agents, attorneys-in-fact or affiliates.
9.7 Indemnification. The Lenders agree to indemnify each Agent in
its capacity as such (to the extent not reimbursed by Holdings or the other
Borrowers and without limiting the obligation of Holdings or the other Borrowers
to do so), ratably according to their respective Aggregate Exposure Percentages
in effect on the date on which indemnification is sought under this Section (or,
if indemnification is sought after the date upon which the Commitments shall
have terminated and the Loans shall have been paid in full, ratably in
accordance with such Aggregate Exposure Percentages immediately prior to such
date), for, and to save each Agent harmless from and against, any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind whatsoever that may at any time
(including, without limitation, at any time following the payment of the Loans)
be imposed on, incurred by or asserted against such Agent in any
73
way relating to or arising out of, the Commitments, this Agreement, any of the
other Loan Documents or any documents contemplated by or referred to herein or
therein or the transactions contemplated hereby or thereby or any action taken
or omitted by such Agent under or in connection with any of the foregoing;
provided that no Lender shall be liable for the payment of any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements that are found by a final and nonappealable
decision of a court of competent jurisdiction to have resulted from such Agent's
gross negligence or willful misconduct. The agreements in this Section shall
survive the payment of the Loans and all other amounts payable hereunder.
9.8 Agent in Its Individual Capacity. Each Agent and its affiliates
may make loans to, accept deposits from and generally engage in any kind of
business with any Loan Party as though such Agent were not an Agent. With
respect to its Loans made or renewed by it and with respect to any Letter of
Credit issued or participated in by it, each Agent shall have the same rights
and powers under this Agreement and the other Loan Documents as any Lender and
may exercise the same as though it were not an Agent, and the terms "Lender" and
"Lenders" shall include each Agent in its individual capacity.
9.9 Successor Administrative Agent. The Administrative Agent may
resign as Administrative Agent upon 30 days' notice to the Lenders and Holdings.
If the Administrative Agent shall resign as Administrative Agent under this
Agreement and the other Loan Documents, then the Required Lenders shall appoint
from among the Lenders a successor agent (with the consent of such successor
agent) for the Lenders, which successor agent shall (unless an Event of Default
under Section 8(a) or Section 8(f) with respect to any Borrower shall have
occurred and be continuing) be subject to approval by Holdings (which approval
shall not be unreasonably withheld or delayed), whereupon such successor agent
shall succeed to the rights, powers and duties of the Administrative Agent, and
the term "Administrative Agent" shall mean such successor agent effective upon
such appointment and approval, and the former Administrative Agent's rights,
powers and duties as Administrative Agent shall be terminated, without any other
or further act or deed on the part of such former Administrative Agent or any of
the parties to this Agreement or any holders of the Loans. If no successor agent
has accepted appointment as Administrative Agent by the date that is 30 days
following a retiring Administrative Agent's notice of resignation, the retiring
Administrative Agent's resignation shall nevertheless thereupon become
effective, and the Lenders shall assume and perform all of the duties of the
Administrative Agent hereunder until such time, if any, as the Required Lenders
appoint a successor agent as provided for above. Any Syndication Agent may, at
any time, by notice to the Lenders and the Administrative Agent, resign as
Syndication Agent hereunder, whereupon the duties, rights, obligations and
responsibilities of such Syndication Agent hereunder shall automatically be
assumed by, and inure to the benefit of, the Administrative Agent, without any
further act by such Syndication Agent, the Administrative Agent or any Lender.
The Documentation Agent may, at any time, by notice to the Lenders and the
Administrative Agent, resign as Documentation Agent hereunder, whereupon the
duties, rights, obligations and responsibilities of the Documentation Agent
hereunder shall automatically be assumed by, and inure to the benefit of, the
Administrative Agent, without any further act by the Documentation Agent, the
Administrative Agent or any Lender. After any retiring Agent's resignation as
Agent, the provisions of this Section 9 shall inure to its benefit as to any
actions taken or omitted to be taken by it while it was Agent under this
Agreement and the other Loan Documents.
9.10 Authorization to Execute Certain Documents and to Release Liens
and Guarantees. The Administrative Agent is hereby irrevocably authorized by
each of the Lenders (i) to execute and deliver each Acknowledgment Agreement,
the Control Agreement and the Syndication Letter and (ii) to effect any release
of Liens or guarantee obligations contemplated by Section 10.15.
9.11 The Arrangers; the Syndication Agents; the Documentation Agent.
Neither any Arranger, the Syndication Agents nor the Documentation Agent, in
their respective capacities as such,
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shall have any duties or responsibilities, nor shall any such Person incur any
liability, under this Agreement and the other Loan Documents.
SECTION 10. MISCELLANEOUS
10.1 Amendments and Waivers. Neither this Agreement or any other
Loan Document, nor any terms hereof or thereof may be amended, supplemented or
modified except in accordance with the provisions of this Section 10.1. The
Required Lenders and each Loan Party party to the relevant Loan Document may, or
(with the written consent of the Required Lenders) the Agents and each Loan
Party party to the relevant Loan Document may, from time to time, (a) enter into
written amendments, supplements or modifications hereto and to the other Loan
Documents (including amendments and restatements hereof or thereof) for the
purpose of adding any provisions to this Agreement or the other Loan Documents
or changing in any manner the rights of the Lenders or of the Loan Parties
hereunder or thereunder or (b) waive, on such terms and conditions as may be
specified in the instrument of waiver, any of the requirements of this Agreement
or the other Loan Documents or any Default or Event of Default and its
consequences; provided, however, that no such waiver and no such amendment,
supplement or modification shall:
(i) forgive or reduce the principal amount or extend the final
scheduled date of maturity of any Loan or Reimbursement Obligation,
reduce the amount of or extend the scheduled date of any
amortization payment in respect of any Term Loan, forgive or reduce
the stated rate of any interest or fee payable under this Agreement
(except (x) in connection with the waiver of applicability of any
post-default increase in interest rates (which waiver shall be
effective with the consent of the Majority Facility Lenders of each
adversely affected Facility) and (y) that any amendment or
modification of defined terms used in the financial covenants in
this Agreement shall not constitute a reduction in the rate of
interest or fees for purposes of this clause (i)) or extend the
scheduled date of any payment thereof, or increase the amount or
extend the expiration date of any Commitment of any Lender, in each
case without the consent of each Lender directly affected thereby;
(ii) amend, modify or waive any provision of this Section or
reduce any percentage specified in the definition of Required
Lenders or Required Prepayment Lenders, consent to the assignment or
transfer by any Borrower of any of its rights and obligations under
this Agreement or the other Loan Documents, release any substantial
part of the Collateral or release Holdings, the Partnership or Xxxxx
LLC from its guarantee obligations under the Guarantee and Pledge
Agreement, in each case without the consent of all the Lenders;
(iii) amend, modify or waive any condition precedent to any
extension of credit under the Revolving Credit Facility set forth in
Section 5.2 (including, without limitation, the waiver of an
existing Default or Event of Default required to be waived in order
for such extension of credit to be made) without the consent of the
Majority Revolving Credit Facility Lenders;
(iv) reduce the percentage specified in the definition of
Majority Facility Lenders with respect to any Facility without the
consent of all of the Lenders under such Facility;
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(v) amend, modify or waive any provision of Section 9, or any
other provision affecting the rights, duties or obligations of any
Agent, without the consent of any Agent directly affected thereby;
(vi) amend, modify or waive any provision of Section 2.6 or
2.7 without the consent of the Swing Line Lender;
(vii) amend, modify or waive any provision of Section 2.18
without the consent of each Lender directly affected thereby;
(viii) amend, modify or waive any provision of Section 3
without the consent of the Issuing Lender;
(ix) amend, modify or waive any provision of Section 2.12(c)
without the consent of each Lender directly affected thereby; or
(x) impose restrictions on assignments and participations that
are more restrictive than, or additional to, those set forth in
Section 10.6 without the consent of each Lender directly affected
thereby.
Any such waiver and any such amendment, supplement or modification shall apply
equally to each of the Lenders and shall be binding upon the Loan Parties, the
Lenders, the Agents and all future holders of the Loans. In the case of any
waiver, the Loan Parties, the Lenders and the Agents shall be restored to their
former position and rights hereunder and under the other Loan Documents, and any
Default or Event of Default waived shall be deemed to be cured and not
continuing; but no such waiver shall extend to any subsequent or other Default
or Event of Default, or impair any right consequent thereon. Any such waiver,
amendment, supplement or modification shall be effected by a written instrument
signed by the parties required to sign pursuant to the foregoing provisions of
this Section; provided, that delivery of an executed signature page of any such
instrument by facsimile transmission shall be effective as delivery of a
manually executed counterpart thereof.
For the avoidance of doubt, this Agreement and any other Loan
Document may be amended (or amended and restated) with the written consent of
the Required Lenders, the Administrative Agent and each Loan Party to each
relevant Loan Document (x) to add one or more additional credit facilities to
this Agreement and to permit the extensions of credit from time to time
outstanding thereunder and the accrued interest and fees in respect thereof
(collectively, the "Additional Extensions of Credit") to share ratably in the
benefits of this Agreement and the other Loan Documents with the Term Loans and
Revolving Extensions of Credit and the accrued interest and fees in respect
thereof and (y) to include appropriately the Lenders holding such credit
facilities in any determination of the Required Lenders, Required Prepayment
Lenders and Majority Facility Lenders.
In addition, notwithstanding the foregoing, this Agreement may be
amended with the written consent of the Administrative Agent, the Borrowers and
the Lenders providing the relevant Replacement Term Loans (as defined below) to
permit the refinancing or modification of all outstanding Tranche B Term Loans
("Refinanced Term Loans") with a replacement "B" or "C" term loan tranche
hereunder ("Replacement Term Loans"), provided that (a) the aggregate principal
amount of such Replacement Term Loans shall not exceed the aggregate principal
amount of such Refinanced Term Loans, (b) the Applicable Margin for such
Replacement Term Loans shall not be higher than the Applicable Margin for such
Refinanced Term Loans, (c) the weighted average life to maturity of such
Replacement Term Loans shall not be shorter than the weighted average life to
maturity of such Refinanced Term Loans at the time of such refinancing and (d)
all other terms applicable to such
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Replacement Term Loans shall be substantially identical to, or less favorable to
the Lenders providing such Replacement Term Loans than, those applicable to such
Refinanced Term Loans, except to the extent necessary to provide for covenants
and other terms applicable to any period after the latest final maturity of the
Term Loans in effect immediately prior to such refinancing.
10.2 Notices. All notices, requests and demands to or upon the
respective parties hereto to be effective shall be in writing (including by
telecopy), and, unless otherwise expressly provided herein, shall be deemed to
have been duly given or made when delivered, or three Business Days after being
deposited in the mail, postage prepaid, or, in the case of telecopy notice, when
received, addressed (a) in the case of Holdings, the Borrowers and the Agents,
as follows and (b) in the case of the Lenders, as set forth in an administrative
questionnaire delivered to the Administrative Agent or on Schedule I to the
Lender Addendum to which such Lender is a party or, in the case of a Lender
which becomes a party to this Agreement pursuant to an Assignment and
Acceptance, in such Assignment and Acceptance or (c) in the case of any party,
to such other address as such party may hereafter notify to the other parties
hereto:
Holdings: General Growth Properties, Inc.
000 Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Treasurer
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
The Partnership: GGP Limited Partnership
c/o General Growth Properties, Inc.
000 Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Treasurer
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
The Company: GGPLP L.L.C.
c/o General Growth Properties, Inc.
000 Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Treasurer
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
Syndication Agent: Bank of America, N.A.
Mailcode IL1-231-10-35
000 X. XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
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Syndication Agent: Credit Suisse First Boston
00 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X'Xxxx
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
Documentation Agent: Eurohypo AG, New York Branch
1114 Avenue of the Americas
Xxxxxx-Xxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Head of Portfolio Operations
Telecopy: (000) 000-0000
with a copy to: Eurohypo AG, New York Branch
1114 Avenue of the Americas
Xxxxxx-Xxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Legal Director
Telecopy: (000) 000-0000
with a copy to: Xxxxxx Xxxxxx Xxxxx Xxxxxxxx
000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxx X. Xxxxx, Esq.
Telecopy: (000) 000-0000
Tranche B Administrative Agent: Xxxxxx Commercial Paper Inc.
High Yield Bank Loans
Xxxxxx Brothers
000 0xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxx Xxxxxxxxxx
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
with a copy to: Xxxxxx Brothers
000 Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxx
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
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General Administrative Agent: Wachovia Bank, National Association
000 Xxxxx Xxxxxxx Xxxxxx, XX0000
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attention: Xxxxx Xxxxxxxx
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
Issuing Lender: As notified by the Issuing Lender to the
Administrative Agent and the Borrowers
provided that any notice, request or demand to or upon the any Agent, any
Issuing Lender or any Lender shall not be effective until received.
Notices and other communications to the Lenders hereunder may be
delivered or furnished by electronic communications pursuant to procedures
approved by the Administrative Agent; provided that the foregoing shall not
apply to notices pursuant to Section 2 unless otherwise agreed by the
Administrative Agent and the applicable Lender. The Administrative Agent or the
Borrowers may, in their discretion, agree to accept notices and other
communications to it hereunder by electronic communications pursuant to
procedures approved by it; provided that approval of such procedures may be
limited to particular notices or communications.
10.3 No Waiver; Cumulative Remedies. No failure to exercise and no
delay in exercising, on the part of any Agent or any Lender, any right, remedy,
power or privilege hereunder or under the other Loan Documents shall operate as
a waiver thereof; nor shall any single or partial exercise of any right, remedy,
power or privilege hereunder preclude any other or further exercise thereof or
the exercise of any other right, remedy, power or privilege. The rights,
remedies, powers and privileges herein provided are cumulative and not exclusive
of any rights, remedies, powers and privileges provided by law.
10.4 Survival of Representations and Warranties. All representations
and warranties made herein, in the other Loan Documents and in any document,
certificate or statement delivered pursuant hereto or in connection herewith
shall survive the execution and delivery of this Agreement and the making of the
Loans and other extensions of credit hereunder.
10.5 Payment of Expenses. Each Borrower (on a pro rata basis based
on the maximum amount of the Commitments made available to it hereunder)
severally agrees (a) to pay or reimburse the Agents for all their reasonable
out-of-pocket costs and expenses incurred in connection with the syndication of
the Facilities (other than fees payable to syndicate members) and the
development, preparation and execution of, and any amendment, supplement or
modification to, this Agreement and the other Loan Documents and any other
documents prepared in connection herewith or therewith, and the consummation and
administration of the transactions contemplated hereby and thereby, including,
without limitation, the reasonable fees and disbursements and other charges of
counsel to the Administrative Agent and the charges of Intralinks, (b) after the
occurrence and during the continuance of an Event of Default, to pay or
reimburse each Lender and the Agents for all their costs and expenses incurred
in connection with the enforcement or preservation of any rights under this
Agreement, the other Loan Documents and any other documents prepared in
connection herewith or therewith, including, without limitation, the reasonable
fees and disbursements of counsel (including the allocated fees and
disbursements and other charges of in-house counsel) to each Lender and of
counsel to the Agents, (c) to pay, indemnify, or reimburse each Lender and the
Agents for, and hold each Lender and the Agents harmless from, any and all
recording and filing fees and any and all liabilities with respect to, or
resulting
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from any delay in paying, stamp, excise and other similar taxes, if any, which
may be payable or determined to be payable in connection with the execution and
delivery of, or consummation or administration of any of the transactions
contemplated by, or any amendment, supplement or modification of, or any waiver
or consent under or in respect of, this Agreement, the other Loan Documents and
any such other documents, and (d) to pay, indemnify or reimburse each Lender,
each Agent, their respective affiliates, and their respective officers,
directors, trustees, employees, advisors, agents and controlling persons (each,
an "Indemnitee") for, and hold each Indemnitee harmless from and against any and
all other liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or nature
whatsoever incurred by an Indemnitee or asserted against any Indemnitee by any
third party or by any Borrower or any other Loan Party arising out of, in
connection with, or as a result of (i) the execution or delivery of this
Agreement, any other Loan Document or any agreement or instrument contemplated
hereby or thereby, the performance by the parties hereto or thereto of their
respective obligations hereunder or thereunder or the consummation of the
transactions contemplated hereby or thereby, (ii) any Loan or Letter of Credit
or the use or proposed use of the proceeds thereof (including any refusal by the
Issuing Lender to honor a demand for payment under a Letter of Credit if the
documents presented in connection with such demand do not strictly comply with
the terms of such Letter of Credit), (iii) any actual or alleged presence or
release of Materials of Environmental Concern on or from any property owned,
occupied or operated by any Group Member, or any environmental liability of any
Group Member or any of their ownership or operation of their respective
properties, or (iv) any actual or prospective claim, litigation, investigation
or proceeding relating to any of the foregoing, whether based on contract, tort
or any other theory, whether brought by any third party or by any Borrower or
any other Loan Party, and regardless of whether any Indemnitee is a party
thereto (all the foregoing in this clause (d), collectively, the "Indemnified
Liabilities"), provided, that the Borrowers shall have no obligation hereunder
to any Indemnitee with respect to Indemnified Liabilities to the extent such
Indemnified Liabilities are found by a final and nonappealable decision of a
court of competent jurisdiction to have resulted from the gross negligence or
willful misconduct of such Indemnitee. No Indemnitee shall be liable for any
damages arising from the use by unauthorized persons of information or other
materials sent through electronic, telecommunications or other information
transmission systems that are intercepted by such persons or for any special,
indirect, consequential or punitive damages in connection with the Facilities.
All amounts due under this Section shall be payable not later than 30 days after
written demand therefor. Statements payable by the Borrowers pursuant to this
Section shall be submitted to Treasurer (Telephone No. (000) 000-0000) (Fax No.
(000) 000-0000), at the respective addresses of the Borrowers set forth in
Section 10.2, or to such other Person or address as may be hereafter designated
by the Borrowers in a notice to the Administrative Agent. The agreements in this
Section shall survive repayment of the Loans and all other amounts payable
hereunder.
10.6 Successors and Assigns; Participations and Assignments. (a)
This Agreement shall be binding upon and inure to the benefit of Holdings, the
Borrowers, the Lenders, the Agents, all future holders of the Loans and their
respective successors and assigns, except that the Borrowers may not assign or
transfer any of their rights or obligations under this Agreement or the other
Loan Documents without the prior written consent of the Agents and each Lender.
(b) Any Lender may, without the consent of Holdings or the other
Borrowers, in accordance with applicable law, at any time sell to one or more
banks, financial institutions or other entities (each, a "Participant")
participating interests in any Loan owing to such Lender, any Commitment of such
Lender or any other interest of such Lender hereunder and under the other Loan
Documents. In the event of any such sale by a Lender of a participating interest
to a Participant, such Lender's obligations under this Agreement to the other
parties to this Agreement shall remain unchanged, such Lender shall remain
solely responsible for the performance thereof, such Lender shall remain the
holder of any such Loan for all purposes under this Agreement and the other Loan
Documents, and the Borrowers and the Agents shall continue to deal solely and
directly with such Lender in connection with
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such Lender's rights and obligations under this Agreement and the other Loan
Documents. In no event shall any Participant under any such participation have
any right to approve any amendment or waiver of any provision of any Loan
Document, or any consent to any departure by any Loan Party therefrom, except to
the extent that such amendment, waiver or consent would require the consent of
all Lenders or each affected Lender pursuant to Section 10.1. The Borrowers
agree that if amounts outstanding under this Agreement and the Loans are due or
unpaid, or shall have been declared or shall have become due and payable upon
the occurrence of an Event of Default, each Participant shall, to the maximum
extent permitted by applicable law, be deemed to have the right of setoff in
respect of its participating interest in amounts owing under this Agreement to
the same extent as if the amount of its participating interest were owing
directly to it as a Lender under this Agreement, provided that, in purchasing
such participating interest, such Participant shall be deemed to have agreed to
share with the Lenders the proceeds thereof as provided in Section 10.7(a) as
fully as if such Participant were a Lender hereunder. The Borrowers also agree
that each Participant shall be entitled to the benefits of Sections 2.19, 2.20
and 2.21 with respect to its participation in the Commitments and the Loans
outstanding from time to time as if such Participant were a Lender; provided
that, in the case of Section 2.20, such Participant shall have complied with the
requirements of said Section, and provided, further, that no Participant shall
be entitled to receive any greater amount pursuant to any such Section than the
transferor Lender would have been entitled to receive in respect of the amount
of the participation transferred by such transferor Lender to such Participant
had no such transfer occurred.
(c) Any Lender (an "Assignor") may, in accordance with applicable
law and upon written notice to the Administrative Agent, at any time and from
time to time assign to any Lender or any affiliate or Related Fund thereof or,
with the consent (which consent, in each case, shall not be unreasonably
withheld or delayed) of (i) Holdings, (ii) in the case of any assignment of the
CMBS Bridge Loans, the Tranche A Term Loans, the Revolving Credit Loans or the
Revolving Credit Commitments, the General Administrative Agent, (iii) in the
case of any assignment of the Tranche B Term Loans, the Tranche B Administrative
Agent and, (iv) in the case of any assignment of Revolving Credit Commitments,
the written consent of the Issuing Lender and the Swing Line Lender (provided
(x) that no such consent need be obtained in connection with an assignment by
Bank of America, N.A., Credit Suisse First Boston, Xxxxxx Commercial Paper Inc.
or Wachovia Bank, National Association and (y) the consent of Holdings need not
be obtained with respect to any assignment of Term Loans), to an additional
bank, financial institution or other entity (an "Assignee") all or any part of
its rights and obligations under this Agreement pursuant to an Assignment and
Acceptance executed by such Assignee and such Assignor (and, where the consent
of Holdings, the Administrative Agent, the Issuing Lender or the Swing Line
Lender is required pursuant to the foregoing provisions, by Holdings and such
other Persons) and delivered to the Administrative Agent for its acceptance and
recording in the Register; provided that no such assignment to an Assignee
(other than any Lender or any affiliate or Related Fund thereof) shall be in an
aggregate principal amount of less than $1,000,000 (other than in the case of an
assignment of all of a Lender's interests under this Agreement), unless
otherwise agreed by Holdings and the Administrative Agent. Any such assignment
need not be ratable as among the Facilities. Upon such execution, delivery,
acceptance and recording, from and after the effective date determined pursuant
to such Assignment and Acceptance, (x) the Assignee thereunder shall be a party
hereto and, to the extent provided in such Assignment and Acceptance, have the
rights and obligations of a Lender hereunder with Commitments and/or Loans as
set forth therein, and (y) the Assignor thereunder shall, to the extent provided
in such Assignment and Acceptance, be released from its obligations under this
Agreement (and, in the case of an Assignment and Acceptance covering all of an
Assignor's rights and obligations under this Agreement, such Assignor shall
cease to be a party hereto, except as to Section 2.19, 2.20 and 10.5 in respect
of the period prior to such effective date). Notwithstanding any provision of
this Section, the consent of Holdings shall not be required for any assignment
(including as to the minimum assignment amount) that occurs at any time when any
Event of Default shall have occurred and be continuing. For purposes of the
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minimum assignment amounts set forth in this paragraph, multiple assignments to
or by two or more Related Funds shall be aggregated.
(d) The Administrative Agent shall, on behalf of the Borrowers,
maintain at its address referred to in Section 10.2 a copy of each Assignment
and Acceptance delivered to it and a register (the "Register") for the
recordation of the names and addresses of the Lenders and the Commitment of, and
principal amount of the Loans owing to, each Lender from time to time. The
entries in the Register shall be conclusive, in the absence of manifest error,
and Holdings, the Borrowers, each Agent and the Lenders shall treat each Person
whose name is recorded in the Register as the owner of the Loans and any Notes
evidencing such Loans recorded therein for all purposes of this Agreement. Any
assignment of any Loan, whether or not evidenced by a Note, shall be effective
only upon appropriate entries with respect thereto being made in the Register
(and each Note shall expressly so provide). Any assignment or transfer of all or
part of a Loan evidenced by a Note shall be registered on the Register only upon
surrender for registration of assignment or transfer of the Note evidencing such
Loan, accompanied by a duly executed Assignment and Acceptance; thereupon one or
more new Notes in the same aggregate principal amount shall be issued to the
designated Assignee, and the old Notes shall be returned by the Administrative
Agent to the Borrowers marked "canceled". The Register shall be available for
inspection by Holdings, the Borrowers or any Lender (with respect to any entry
relating to such Lender's Loans) at any reasonable time and from time to time
upon reasonable prior notice.
(e) Upon its receipt of an Assignment and Acceptance executed by an
Assignor and an Assignee (and, in any case where the consent of any other Person
is required by Section 10.6(c), by each such other Person) together with payment
to the Administrative Agent of a registration and processing fee of $3,500
(treating multiple, simultaneous assignments by or to two or more Related Funds
as a single assignment) (except that no such registration and processing fee
shall be payable in the case of (x) an Assignee which is already a Lender or is
an affiliate or Related Fund of a Lender or a Person under common management
with a Lender and (y) an assignment to or from Bank of America, N.A., Credit
Suisse First Boston, Xxxxxx Commercial Paper Inc. or Wachovia Bank, National
Association), the Administrative Agent shall (i) promptly accept such Assignment
and Acceptance and (ii) on the effective date determined pursuant thereto record
the information contained therein in the Register and give notice of such
acceptance and recordation to Holdings and the other Borrowers. On or prior to
such effective date, the Borrowers, at their own expense, upon request, shall
execute and deliver to the Administrative Agent (in exchange for the Revolving
Credit Note and/or applicable Term Notes, as the case may be, of the assigning
Lender) a new Revolving Credit Note and/or applicable Term Notes, as the case
may be, to the order of such Assignee in an amount equal to the Revolving Credit
Commitment and/or applicable Term Loans, as the case may be, assumed or acquired
by it pursuant to such Assignment and Acceptance and, if the Assignor has
retained a Revolving Credit Commitment and/or Term Loans, as the case may be,
upon request, a new Revolving Credit Note and/or Term Notes, as the case may be,
to the order of the Assignor in an amount equal to the Revolving Credit
Commitment and/or applicable Term Loans, as the case may be, retained by it
hereunder. Such new Note or Notes shall be dated the Closing Date and shall
otherwise be in the form of the Note or Notes replaced thereby.
(f) For avoidance of doubt, the parties to this Agreement
acknowledge that the provisions of this Section concerning assignments of Loans
and Notes relate only to absolute assignments and that such provisions do not
prohibit assignments creating security interests in Loans and Notes, including,
without limitation, any pledge or assignment by a Lender of any Loan or Note to
any Federal Reserve Bank in accordance with applicable law.
(g) Notwithstanding anything to the contrary contained herein, any
Lender (a "Granting Lender") may grant to a special purpose funding vehicle (an
"SPC"), identified as such in writing from time to time by the Granting Lender
to the Administrative Agent, Holdings and the other Borrowers, the
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option to provide to the Borrowers all or any part of any Loan that such
Granting Lender would otherwise be obligated to make to the Borrowers pursuant
to this Agreement; provided that (i) nothing herein shall constitute a
commitment by any SPC to make any Loan and (ii) if an SPC elects not to exercise
such option or otherwise fails to provide all or any part of such Loan, the
Granting Lender shall be obligated to make such Loan pursuant to the terms
hereof. The making of a Loan by an SPC hereunder shall utilize the Commitment of
the Granting Lender to the same extent, and as if, such Loan were made by such
Granting Lender. Each party hereto hereby agrees that no SPC shall be liable for
any indemnity or similar payment obligation under this Agreement (all liability
for which shall remain with the Granting Lender). In furtherance of the
foregoing, each party hereto hereby agrees (which agreement shall survive the
termination of this Agreement) that, prior to the date that is one year and one
day after the payment in full of all outstanding commercial paper or other
indebtedness of any SPC, it will not institute against, or join any other person
in instituting against, such SPC any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings under the laws of the United States or any
state thereof. In addition, notwithstanding anything to the contrary in this
Section 10.6(g), any SPC may (A) with notice to, but without the prior written
consent of, Holdings, the Borrowers and the Administrative Agent and without
paying any processing fee therefor, assign all or a portion of its interests in
any Loans to the Granting Lender, or with the prior written consent of Holdings
and the Administrative Agent (which consent shall not be unreasonably withheld)
to any financial institutions providing liquidity and/or credit support to or
for the account of such SPC to support the funding or maintenance of Loans, and
(B) disclose on a confidential basis any non-public information relating to its
Loans to any rating agency, commercial paper dealer or provider of any surety,
guarantee or credit or liquidity enhancement to such SPC; provided that
non-public information with respect to the Borrowers may be disclosed only with
the consent of Holdings which will not be unreasonably withheld. This paragraph
(g) may not be amended without the written consent of any SPC with Loans
outstanding at the time of such proposed amendment.
10.7 Adjustments; Set-off. (a) Except to the extent that this
Agreement provides for payments to be allocated to a particular Lender or to the
Lenders under a particular Facility, if any Lender (a "Benefitted Lender") shall
at any time receive any payment of all or part of the Obligations owing to it,
or receive any collateral in respect thereof (whether voluntarily or
involuntarily, by set-off, pursuant to events or proceedings of the nature
referred to in Section 8(f), or otherwise), in a greater proportion than any
such payment to or collateral received by any other Lender, if any, in respect
of such other Lender's Obligations, such Benefitted Lender shall purchase for
cash from the other Lenders a participating interest in such portion of each
such other Lender's Obligations, or shall provide such other Lenders with the
benefits of any such collateral, as shall be necessary to cause such Benefitted
Lender to share the excess payment or benefits of such collateral ratably with
each of the Lenders; provided, however, that if all or any portion of such
excess payment or benefits is thereafter recovered from such Benefitted Lender,
such purchase shall be rescinded, and the purchase price and benefits returned,
to the extent of such recovery, but without interest.
(b) In addition to any rights and remedies of the Lenders provided
by law, each Lender shall have the right, without prior notice to Holdings or
the other Borrowers, any such notice being expressly waived by Holdings and the
other Borrowers to the extent permitted by applicable law, upon any amount
becoming due and payable by Holdings or the other Borrowers hereunder (whether
at the stated maturity, by acceleration or otherwise), to set off and
appropriate and apply against such amount any and all deposits (general or
special, time or demand, provisional or final), in any currency, and any other
credits, indebtedness or claims, in any currency, in each case whether direct or
indirect, absolute or contingent, matured or unmatured, at any time held or
owing by such Lender or any branch or agency thereof to or for the credit or the
account of Holdings or the other Borrowers, as the case may be. Each Lender
agrees promptly to notify the Borrowers and the Administrative Agent after any
such setoff and application made by such Lender, provided that the failure to
give such notice shall not affect the validity of such setoff and application.
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10.8 Counterparts. This Agreement may be executed by one or more of
the parties to this Agreement on any number of separate counterparts, and all of
said counterparts taken together shall be deemed to constitute one and the same
instrument. Delivery of an executed signature page of this Agreement or of a
Lender Addendum by facsimile transmission shall be effective as delivery of a
manually executed counterpart hereof. A set of the copies of this Agreement
signed by all the parties shall be lodged with the Borrowers and the
Administrative Agent.
10.9 Severability. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
10.10 Integration. This Agreement and the other Loan Documents
represent the entire agreement of Holdings, the Borrowers, the Agents, the
Arrangers and the Lenders with respect to the subject matter hereof and thereof,
and there are no promises, undertakings, representations or warranties by any
Arranger, any Agent or any Lender relative to subject matter hereof not
expressly set forth or referred to herein or in the other Loan Documents.
10.11 GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS
OF THE PARTIES UNDER THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
10.12 Submission To Jurisdiction; Waivers. Each of Holdings and each
Borrower hereby irrevocably and unconditionally:
(a) submits for itself and its Property in any legal action or
proceeding relating to this Agreement and the other Loan Documents to
which it is a party, or for recognition and enforcement of any judgment in
respect thereof, to the non-exclusive general jurisdiction of the courts
of the State of New York, the courts of the United States of America for
the Southern District of New York, and appellate courts from any thereof;
(b) consents that any such action or proceeding may be brought in
such courts and waives any objection that it may now or hereafter have to
the venue of any such action or proceeding in any such court or that such
action or proceeding was brought in an inconvenient court and agrees not
to plead or claim the same;
(c) agrees that service of process in any such action or proceeding
may be effected by mailing a copy thereof by registered or certified mail
(or any substantially similar form of mail), postage prepaid, to Holdings
or the other Borrowers, as the case may be, at its address set forth in
Section 10.2 or at such other address of which the Administrative Agent
shall have been notified pursuant thereto;
(d) agrees that nothing herein shall affect the right to effect
service of process in any other manner permitted by law or shall limit the
right to xxx in any other jurisdiction; and
(e) waives, to the maximum extent not prohibited by law, any right
it may have to claim or recover in any legal action or proceeding referred
to in this Section any special, exemplary, punitive or consequential
damages.
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10.13 Acknowledgments. Each of Holdings and each Borrower hereby
acknowledges that:
(a) it has been advised by counsel in the negotiation, execution and
delivery of this Agreement and the other Loan Documents;
(b) neither any Arranger, any Agent nor any Lender has any fiduciary
relationship with or duty to Holdings or any other Borrower arising out of
or in connection with this Agreement or any of the other Loan Documents,
and the relationship between the Arrangers, the Agents and the Lenders, on
one hand, and Holdings and the other Borrowers, on the other hand, in
connection herewith or therewith is solely that of debtor and creditor;
and
(c) no joint venture is created hereby or by the other Loan
Documents or otherwise exists by virtue of the transactions contemplated
hereby among the Arrangers, the Agents and the Lenders or among Holdings,
the Borrowers and the Lenders.
10.14 Confidentiality. Each of the Agents and the Lenders agrees to
keep confidential all non-public information provided to it by any Loan Party
pursuant to this Agreement that is designated by such Loan Party as
confidential; provided that nothing herein shall prevent any Agent or any Lender
from disclosing any such information (a) to any Arranger, any Agent, any other
Lender or any affiliate of any thereof, (b) to any Participant or Assignee
(each, a "Transferee") or prospective Transferee that agrees to comply with the
provisions of this Section or substantially equivalent provisions, (c) to any of
its and its affiliates' employees, directors, agents, attorneys, accountants,
trustees and other professional advisors, (d) to any pledgee referred to in
Section 10.6(f) that, other than in the case of any Federal Reserve Bank, agrees
to comply with the provisions of this Section or substantially equivalent
provisions or to any financial institution that is a direct or indirect
contractual counterparty in swap agreements or such contractual counterparty's
professional advisor (so long as such contractual counterparty or professional
advisor to such contractual counterparty agrees to be bound by the provisions of
this Section), (e) upon the request or demand of any Governmental Authority
having jurisdiction over it, (f) in response to any order of any court or other
Governmental Authority or as may otherwise be required pursuant to any
Requirement of Law, (g) in connection with any litigation or similar proceeding,
(h) that has been publicly disclosed other than in breach of this Section, (i)
to the National Association of Insurance Commissioners or any similar
organization or any nationally recognized rating agency that requires access to
information about a Lender's investment portfolio in connection with ratings
issued with respect to such Lender or (j) in connection with the exercise of any
remedy hereunder or under any other Loan Document.
10.15 Release of Collateral and Guarantee Obligations.
(a) Notwithstanding anything to the contrary contained herein or in
any other Loan Document, upon request of Holdings in connection with any
Disposition of Property permitted by the Loan Documents, the
Administrative Agent shall (without notice to, or vote or consent of, any
Lender, or any affiliate of any Lender that is a party to any Specified
Hedge Agreement) take such actions as shall be required to release its
security interest in any Collateral being Disposed of in such Disposition,
and to release any guarantee obligations under any Loan Document of any
Person being Disposed of in such Disposition, to the extent necessary to
permit consummation of such Disposition in accordance with the Loan
Documents.
(b) Notwithstanding anything to the contrary contained herein or any
other Loan Document, when all Obligations (other than obligations in
respect of any Specified Hedge Agreement) have been paid in full, all
Commitments have terminated or expired and no Letter of
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Credit shall be outstanding, upon request of Holdings, the Administrative
Agent shall (without notice to, or vote or consent of, any Lender, or any
affiliate of any Lender that is a party to any Specified Hedge Agreement)
take such actions as shall be required to release its security interest in
all Collateral, and to release all guarantee obligations under any Loan
Document, whether or not on the date of such release there may be
outstanding Obligations in respect of Specified Hedge Agreements. Any such
release of guarantee obligations shall be deemed subject to the provision
that such guarantee obligations shall be automatically reinstated if after
such release any portion of any payment in respect of the Obligations
guaranteed thereby shall be rescinded or must otherwise be restored or
returned upon the insolvency, bankruptcy, dissolution, liquidation or
reorganization of any Borrower or any Guarantor, or upon or as a result of
the appointment of a receiver, intervenor or conservator of, or trustee or
similar officer for, any Borrower or any Guarantor or any substantial part
of its property, or otherwise, all as though such payment had not been
made.
10.16 Accounting Changes. In the event that any "Accounting Change"
(as defined below) shall occur and such change results in a change in the method
of calculation of financial covenants, standards or terms in this Agreement,
then Holdings and the Administrative Agent agree to enter into negotiations in
order to amend such provisions of this Agreement so as to equitably reflect such
Accounting Change with the desired result that the criteria for evaluating the
financial condition of Holdings shall be the same after such Accounting Change
as if such Accounting Change had not been made. Until such time as such an
amendment shall have been executed and delivered by Holdings, the Borrowers, the
Administrative Agent and the Required Lenders, all financial covenants,
standards and terms in this Agreement shall continue to be calculated or
construed as if such Accounting Change had not occurred. "Accounting Change"
refers to any change in accounting principles required by the promulgation of
any rule, regulation, pronouncement or opinion by the Financial Accounting
Standards Board of the American Institute of Certified Public Accountants or, if
applicable, the SEC.
10.17 Delivery of Lender Addenda. Each initial Lender shall become a
party to this Agreement by delivering to the Administrative Agent a Lender
Addendum duly executed by such Lender, the Borrowers and the Administrative
Agent.
10.18 WAIVERS OF JURY TRIAL. EACH PARTY HERETO HEREBY IRREVOCABLY
AND UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING
RELATING TO THIS AGREEMENT OR TO ANY OTHER LOAN DOCUMENT AND FOR ANY
COUNTERCLAIM THEREIN.
86
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered by their proper and duly authorized officers as
of the day and year first above written.
GENERAL GROWTH PROPERTIES, INC.
By: /s/ Xxxxxxx Xxxxxxxx
Name: Xxxxxxx Xxxxxxxx
Title: Vice President
GGP LIMITED PARTNERSHIP
By: /s/ Xxxxxxx Xxxxxxxx
Name: Xxxxxxx Xxxxxxxx
Title: Vice President
GGPLP L.L.C.
By: /s/ Xxxxxxx Xxxxxxxx
Name: Xxxxxxx Xxxxxxxx
Title: Vice President
XXXXXX COMMERCIAL PAPER INC.,
as Tranche B Administrative Agent
By: /s/ Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title: Authorized Signatory
WACHOVIA BANK, NATIONAL ASSOCIATION, as General
Administrative Agent
By: /s/ Xxxxx Xxxxxxxx
Name: Xxxxx Xxxxxxxx
Title: Director
XXXXXX BROTHERS INC.,
as Arranger
By: /s/ Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title: Authorized Signatory
BANC OF AMERICA SECURITIES LLC,
as Arranger
By: /s/ Xxxxxxxxx Xxxxx
Name: Xxxxxxxxx Xxxxx
Title: Managing Director
CREDIT SUISSE FIRST BOSTON,
as Arranger
By: /s/ Xxxx X' Xxxx
Name: Xxxx X'Xxxx
Title: Director
By: /s/ Xxxxx Xxxx
Name: Xxxxx Xxxx
Title: Associate
WACHOVIA CAPITAL MARKETS, LLC,
as Arranger
By: /s/ Xxxxx Xxxxxxxx
Name: Xxxxx Xxxxxxxx
Title:Director
BANK OF AMERICA, N.A.,
as Syndication Agent
By: /s/ Xxxxxxx Xxxxxxx
Name: Xxxxxxx Xxxxxxx
Title: Managing Director
CREDIT SUISSE FIRST BOSTON,
as Syndication Agent
By: /s/ Xxxx X' Xxxx
Name: Xxxx X'Xxxx
Title: Director
By: /s/ Xxxxx Xxxx
Name: Xxxxx Xxxx
Title: Associate
EUROHYPO AG, NEW YORK BRANCH,
as Documentation Agent
By: /s/ Xxx X. Xxxxxxxx
Name: Xxx X. Xxxxxxxx
Title: Managing Director
By: /s/ Xxxxx Tzeilos
Name: Xxxxx Tzeilos
Title: Executive Director
